H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P.
MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, TROUTMAN, AND
from a judgment of the Onondaga County Court (Thomas J.
Miller, J.), rendered June 27, 2014. The judgment convicted
defendant, upon a jury verdict, of murder in the second
degree, attempted murder in the second degree, assault in the
first degree and criminal possession of a weapon in the
second degree (two counts).
hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of
assault in the first degree (Penal Law § 120.10 ) to
assault in the second degree (§ 120.05 ), and
vacating the sentence imposed on count three of the
indictment, and as modified the judgment is affirmed and the
matter is remitted to Onondaga County Court for sentencing on
the conviction of assault in the second degree.
Defendant appeals from a judgment convicting him upon a jury
verdict of murder in the second degree (Penal Law §
125.25 ), attempted murder in the second degree
(§§ 110.00, 125.25 ), assault in the first
degree (§ 120.10 ), and two counts of criminal
possession of a weapon in the second degree (§ 265.03
 [b]; ). This case arose from an incident in which two
victims were ambushed on a residential street in the City of
Syracuse by three assailants. One victim sustained gunshot
wounds to the leg and survived. The other victim was shot in
the head and died. Eyewitnesses initially identified
defendant and Maximino Alvarez as two of the assailants, and
Pedro Romero was later identified as the third assailant. A
grand jury indicted defendant, Alvarez, and Romero on an
acting-in-concert theory, and Alvarez eventually pleaded
guilty and agreed to testify against defendant.
contends that his conviction of assault in the first degree
as charged in count three of the indictment is based on
legally insufficient evidence because there is insufficient
evidence that the surviving victim suffered serious physical
injury (see Penal Law § 120.10 ). We agree.
The Penal Law defines "serious physical injury" as
"physical injury which creates a substantial risk of
death, or which causes death or serious and protracted
disfigurement, protracted impairment of health or protracted
loss or impairment of the function of any bodily organ"
(§ 10.00 ). Although the jury had the opportunity to
view the scars on the victim's leg caused by his gunshot
wounds, "the record does not contain any pictures or
descriptions of what the jury saw so as to prove that these
scars constitute serious or protracted disfigurement"
(People v Tucker, 91 A.D.3d 1030, 1032, lv
denied 19 N.Y.3d 1002; see generally People v
McKinnon, 15 N.Y.3d 311, 315-316). Furthermore, in our
view, the victim's testimony that he "feel[s] pain
in [his] leg" in cold weather does not constitute
evidence of persistent pain so severe as to cause
"protracted impairment of health" (§ 10.00
; see generally People v Stewart, 18 N.Y.3d 831,
832-833). We conclude, however, that the evidence is legally
sufficient to support a conviction of the lesser included
offense of assault in the second degree (§ 120.05 ),
and we therefore modify the judgment accordingly.
reject defendant's further contention that the verdict is
against the weight of the evidence with respect to the issue
whether he acted in concert with Alvarez and Romero.
"The jury's resolution of credibility and
identification issues is entitled to great weight"
(People v Houston, 142 A.D.3d 1397, 1398, lv
denied 28 N.Y.3d 1146');">28 N.Y.3d 1146 [internal quotation marks
omitted]), and we see no reason to disturb the jury's
resolution of those issues in this case. Viewing the evidence
in light of the elements of the crimes of murder, attempted
murder, and criminal possession of a weapon, as charged to
the jury (see People v Danielson, 9 N.Y.3d 342,
349), we conclude that the verdict with respect to those
crimes is not against the weight of the evidence (see
generally People v Bleakley, 69 N.Y.2d 490, 495).
also contends that he was denied a fair trial when County
Court allowed the prosecutor to question Alvarez about a
threatening letter that Alvarez had received while he was in
prison. We reject that contention. Although it is an abuse of
discretion for the court to allow a witness to testify
concerning threats made by third parties relative to the
witness's testimony absent evidence linking those threats
to the defendant (see People v Jones, 21 N.Y.3d 449,
456; People v Myrick, 31 A.D.3d 668, 669, lv
denied 7 N.Y.3d 927), here, we conclude that there was
no abuse of discretion. Alvarez in fact testified that he did
not receive any threats from defendant or from any third
party on defendant's behalf. Alvarez acknowledged
receiving a letter, but he testified that he did not take the
letter to be a threat.
failed to preserve for our review his contention that he was
denied a fair trial due to prosecutorial misconduct during
summation (see People v Simmons, 133 A.D.3d 1227,
1228), and we decline to exercise our power to review that
contention as a matter of discretion in the interest of
justice (see CPL 470.15  [a]). Contrary to
defendant's further contention, we conclude that the
court properly denied his request for a missing witness
charge because he "failed to meet his initial burden of
establishing that [the] witness would provide testimony