People v Barnett
2005 NY Slip Op 02122 [16 AD3d 1128]
March 18, 2005
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 18, 2005

The People of the State of New York, Respondent, v Allen Barnett, Appellant.


Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered May 30, 2003. The judgment convicted defendant, upon a jury verdict, of assault in the first degree and criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him following a jury trial of assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]), defendant contends that the verdict is against the weight of the evidence. We reject that contention (see People v Bleakley, 69 NY2d 490, 495 [1987]). We further reject the contention that the conviction of assault in the first degree should be reduced to assault in the second degree because the victim did not sustain a serious physical injury. The victim suffered three stab wounds, including a laceration to the liver, required surgery and was hospitalized for five days. He testified that he suffered a serious and protracted disfigurement, and the jury was able to view his scars. Under the circumstances, we conclude that the evidence is legally sufficient to establish that the victim sustained a serious physical injury (see People v Gagliardo, 283 AD2d 964 [2001], lv denied 96 NY2d 901 [2001]).

Defendant further contends that the prosecutor violated Supreme Court's Sandoval ruling by questioning defendant about statements he had made to the police. Those statements did not fall within the scope of the court's Sandoval ruling. In addition, the court properly admitted testimony of a police officer regarding those statements as rebuttal testimony (see People v Hill, 281 AD2d 917, 917-918 [2001], lv denied 96 NY2d 902 [2001]; see also CPL 260.30 [7]). The contention that defendant's conviction of criminal possession of a weapon in the third degree should be reduced to criminal possession of a weapon in the fourth degree is not preserved for our review (see CPL 470.15 [6] [a]). The sentence is not unduly harsh or severe. Present—Scudder, J.P., Martoche, Pine, Lawton and Hayes, JJ.