People v. Gagliardo

May 2, 2001
Versions:283 A.D.2d 964
724 N.Y.S.2d 919
2001 N.Y. App. Div. LEXIS 4664

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Contrary to defendant’s contention, the conviction is supported by legally sufficient evidence that the victim sustained a serious physical injury. The trauma surgeon who treated the victim testified that the victim suffered lacerations into his muscle tissue that required suturing and resulted in permanent scarring (see, People v Perez, 184 AD2d 1033, lv denied 80 NY2d 932; see also, People v Steele, 277 AD2d 932). The sentence is neither unduly harsh nor severe.

In his pro se supplemental brief, defendant contends that he was denied a fair trial by prosecutorial misconduct. Defendant failed to object to the alleged instances of prosecutorial misconduct and thus has failed to preserve that contention for our review (see, CPL 470.05 [2]). In any event, the alleged misconduct was not so egregious as to have deprived defendant of a fair trial (see, People v Rubin, 101 AD2d 71, 77-78, lv denied 63 NY2d 711). We reject the further contention of defendant that he was denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see, People v Baldi, 54 NY2d 137, 147). (Appeal from Judgment of Supreme Court, Erie County, Tills, J. — Assault, 1st Degree.) Present — Green, J. P., Hayes, Hurlbutt, Kehoe and Lawton, JJ.