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United States v. McKenzie

United States District Court, E.D. New York

April 21, 2014


LORETTA E. LYNCH, ESQ., UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK, Lara Treinis Gatz, Esq., Assistant United States Attorney, Attorney for the Government, Central Islip, New York.

HERMAN KAUFMAN, ESQ., Herman Kaufman, Esq., Attorney for Defendant, Old Greenwich, CT.


LEONARD D. WEXLER, District Judge.

Following a bench trial before the Honorable Magistrate Judge Arlene Rosario Lindsay, the Defendant, Donovan McKenzie, was convicted of simple assault, in violation of 18 U.S.C. ยง 113(a)(5). Magistrate Judge Lindsay sentenced Defendant to two years probation and ordered him to participate in mental health counseling with anger management. A special assessment of $10 was also imposed.

On appeal, Defendant argues that his attorney's failure to call an expert witness constituted ineffective assistance of counsel, requiring a reversal of his conviction and a new trial. For the following reasons, the Court rejects Defendant's arguments and Defendant's conviction is affirmed.


The charges against Defendant stem from an incident that occurred on December 22, 2010 during the course of his employment with the Department of Veterans Affairs at the Northport VA Medical Center. (Tr. 5-6.) On that date, the Defendant entered the office of a coworker, Allison Moreno White ("White"), and began discussing an incident that had occurred with another coworker, Carol Meissner ("Meissner"), in which the Defendant was accused of threatening Meissner. (Tr. 7-8.) Defendant then extended his hand to White for what White perceived to be a handshake. (Tr. 7, 9.) White extended her hand as well, but upon grasping White's hand, the Defendant began squeezing tightly. (Tr. 7, 9, 31.) White requested that the Defendant let go of her hand, but he refused to do so. (Tr. 7.) White eventually "wrenched" her hand from the Defendant's grip, stating "Let me go." (Tr. 7.)

The Defendant then stated to White, "Why would I threaten anyone? See what I can do if I wanted to?" and "mockingly smiled and said: Does that hurt?" (Tr. 7, 9-10, 20-21.) White asked the Defendant to leave her office, but he refused to. (Tr. 8, 19.) After repeatedly asking and raising her voice, the Defendant left White's office. (Tr. 8, 20-22.) White and Meissner then went to the emergency room to have White's hand examined. (Tr. 8.) At the emergency room, White was given an x-ray and a hand brace and was instructed to have an MRI scan performed. (Tr. 10-11.) White was diagnosed as having a sprained wrist and directed to take time off from work as a result of the injury. (Tr. 32-33, 100.)

At the trial of this action before Magistrate Lindsay, another coworker, George Blydenburgh ("Blydenburgh"), testified that although he did not witness the incident firsthand on December 22, 2010, he heard White and the Defendant arguing in White's office at that time. (Tr. 52-55.) Blydenburgh then heard White scream and saw her emerge from her office, holding her hand saying "Donovan hurt me." (Tr. 39, 48, 50, 52, 55.) Blydenburgh then confronted the Defendant about the incident, asking him what he did to White. (Tr. 40, 55.) The Defendant responded that he shook White's hand. (Tr. 40.) Blydenburgh testified that when he asked the Defendant why he hurt White, the Defendant stated that he "did it as a show of strength." (Tr. 40, 55.) Blydenburgh thereafter reported the incident to the VA police. (Tr. 41, 46.)

The Defendant also testified at the trial before Magistrate Lindsay, acknowledging that he shook White's hand but denying that he applied any pressure or injured White in any way. (Tr. 68-71.) The Defendant also denied making the statement to Blydenburgh that he shook White's hand as a "show of strength." (Tr. 70-71.)

Upon the conclusion of the trial, Magistrate Lindsay found the Defendant guilty of simple assault. (Tr. 119.) The Defendant was sentenced to two years probation, ordered to participate in mental health counseling with anger management and fined a special assessment of $10. (Minute Entry of Sentencing dated July 16, 2013.) The Defendant now appeals the conviction and the sentence imposed.


I. Standard of Review

Federal Rule of Criminal Procedure 58(g)(2)(13) provides the Court with jurisdiction over Defendant's appeal. When considering an appeal from a magistrate judge's judgment of conviction, "[t]he scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Marquez, 2013 U.S. Dist. LEXIS 145584, at *9 (quoting Fed. R. Crim. P. 58(g)(2)(D)). The Court reviews the questions of law de novo and "accepts the Magistrate Judge's ...

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