Opinion
06-28-2017
The PEOPLE, etc., respondent, v. Konstantin RUDENKO, appellant.
Lynn W.L. Fahey, New York, NY (Nao Terai and Kendra Hutchinson of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Arieh Schulman of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Nao Terai and Kendra Hutchinson of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Arieh Schulman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered May 15, 2014, convicting him of assault in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the evidence of serious physical injury adduced at trial was legally insufficient to support his conviction of assault in the first degree. However, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that the complainant sustained a "serious physical injury" within the meaning of Penal Law § 10.00(10). Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt on the count of assault in the first degree, including the serious physical injury element, was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). The medical evidence established that the complainant sustained two knife wounds, including a deep stab wound to the left anterior chest wall about three inches from his heart, and developed a hematoma in the muscle of his chest. The stab wound required stitches, and the complainant was admitted to the hospital for observation. Overnight, the hematoma expanded in the chest muscle, requiring the complainant to undergo an approximately 1 ½ hour surgery under general anesthesia, during which a drain was inserted in his chest. The People's medical expert testified that, if left untreated, the complainant could have died. At the time of trial, almost two years after the incident, the complainant still had scars from the stabbing, which he displayed to the jury (see People v. Almonte, 7 A.D.3d 324, 325, 776 N.Y.S.2d 554 ; People v. Rodriguez, 2 A.D.3d 284, 285, 769 N.Y.S.2d 257 ; People v. Rivera, 300 A.D.2d 168, 168–169, 751 N.Y.S.2d 731 ; People v. Gagliardo, 283 A.D.2d 964, 724 N.Y.S.2d 919 ; People v. Sacasa, 214 A.D.2d 688, 626 N.Y.S.2d 206 ; People v. Ross, 125 A.D.2d 422, 509 N.Y.S.2d 142 ; cf. People v. Adames, 52 A.D.3d 617, 618, 859 N.Y.S.2d 725 ).
The defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ). In any event, the challenged remarks were fair comment on the evidence and the reasonable inferences to be drawn therefrom (see People v. Guzman, 138 A.D.3d 1140, 1140, 31 N.Y.S.3d 146 ; People v. Ramrattan, 126 A.D.3d 1013, 1014, 6 N.Y.S.3d 131 ), were fair response to the defense summation (see People v. Halm, 81 N.Y.2d 819, 821, 595 N.Y.S.2d 380, 611 N.E.2d 281 ; People v. Johnson, 127 A.D.3d 1234, 1234, 5 N.Y.S.3d 902 ), or do not otherwise require reversal (see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; cf. People v. Ashwal, 39 N.Y.2d 105, 110–111, 383 N.Y.S.2d 204, 347 N.E.2d 564 ; People v. Rivera, 128 A.D.3d 857, 858, 9 N.Y.S.3d 119 ).
The defendant's remaining contention is unpreserved for appellate review, and, in any event, without merit.
MASTRO, J.P., RIVERA, ROMAN and SGROI, JJ., concur.