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Tew York Supreme Court Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - FELIX SATER, Defendant-Appellant. BRIEF FOR RESPONDENT ROBERT M. MORGENTHAU. District Attorney New York County ‘Attomey for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 Marx Dwyer | | | Assistant District ATToRNeys Of Counsel IWTRODUCTION 5... . THE EVIDENCE AT TRIAL. . . The People’s Case . . The Defendant’s Case . . . « POINT I DEFENDANT’S GUILT WAS. PROVED BEYOND A REASONABLE DOUBT... . . POINT II THE COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR THE SUBMISSION OF ASSAULT IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE . POINT IIT TRIAL COURT’S RULINGS. WERE PROPER AND DID NOT EVIDENCE JUDICIAL BIAS . . CONCLUSION . SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- FELIX SATER, Defendant~Appellant. Felix Sater appeals from a judgment rendered March 31, 1993, in Supreme Court, New York County (Leff, J.), convicting him, after a jury trial, of one count of Assault in the First Degree (Penal Law §120.10[1}). Defendant was sentenced to 2 prison term of from one and a half to four and a half years. Execution of judgment was stayed pending appeal and defendant is currently out on bail. On the evening of October 1, 1991, in the El Rio Grande restaurant and bar at the corner of 38th Street and Third Avenue in Manhattan, defendant provoked an argument with Stephen Friedman. He soon struck Friedman in the face with a broken margarita glass, lacerating his skin, slicing through muscle, severing nerves, and breaking Friedman’s cheek bone. Defendant then screamed "I fucked your sister" as he attempted to free himself from those restraining him in order to continue his assault on Friedman. Defendant was physically ejected from the premises by the bouncer. Two uniformed police officers thereafter brought defendant back to El Rio Grande, whereupon defendant was arrested. By Indictment No. 12068/91, filed October 29, 1991, defendant was charged with one count of Assault in the First Degree. Prior to trial, defendant moved to suppress statements made by him and identification testimony of the People’s witnesses. on February 4, 1993, a combined Huntley/Wade hearing was held on that motion before the Honorable James J. Leff, who granted it with respect to defendant’s statements and denied it as to identification testimony.” on February 5, 1992, defendant proceeded to a jury trial before Justice Leff. On February 17, 1993, the jury found defendant guilty as charged. 0n March 31, 1993, Justice Leff denied defendant’s motion to set aside the verdict and sentenced him as noted above. On April 2, 1993, defendant moved this Court for an order pursuant to C.P.L, $§460.50 and 530.50 admitting him to bail pending appeal. Justice John Carro granted a stay of execution of defendant’s sentence, set bail in the amount of $10,000.00, and ordered defendant to surrender his passport pending appeal. “Defendant does not raise any issues pertaining to the suppression hearing. Accordingly, the testimony at the hearing will not be recounted in this brief. On appeal, defendant contends that Justice Leff committed reversible error by not charging the jury on the lesser included offense of Assault in the Second Degree. In addition, defendant complains that as a result of bias the trial court improperly limited defendant’s cross examination of a witness, denied a request for an adjournment during trial, and pressured the jury to return a quick verdict. ‘THE EVIDENCE AT TRIAL The People’s Case In October of 1991, STEPHEN FRIEDMAN was a thirty year old self-employed commodities trader. He had traded commodities for approximately six years since graduating from Boston University in 1985 (C Friedman: 465, 504).” on the evening of October 1, 1991, Mr. Friedman went to the office of ROBERT DREYER at the Empire State Building (c Friedman: 466, 513; B Dreyer: 296). Dreyer, a friend since college, was in town from Boston on business (C Friedman: 466, 512; B Dreyer: 294-295, 326, “Those page references to the trial minutes preceded by "A" are to the February 5, 1993 trial minutes; those preceded by "B" are to the February 9, 1993 trial minutes; those preceded by "C" are to the February 11, 1993 trial minutes; those preceded by "D" are to the first set of February 16, 1993 trial minutes; thos. Preceded by "E" are to the second set of February 16, 1993 trial minutes; and those preceded by "F" are to the February 17, 1993 trial minutes. Ee 328). They proceeded to the El Rio Grande” restaurant located at 38th Street and Third Avenue to have a drink and a bite to eat (C Friedman: 468, B Dreyer 296, 324). Friedman and Dreyer arrived at the restaurant between 7:30 and 8:00 p.m. and sat at the bar on the Texas side to await the arrival of MARILYN GAMZON, who at the time dated Dreyer (C Friedman: 469, 514; B Dreyer: 297, 299; © Gamzon: 425, 460). While waiting they ordered a drink and some appetizers and caught up on each other’s news (C Friedman: 468; B Dreyer 299, 325, 332). Gamzon, who worked as an administrator for a surgeon, arrived around 8:30 p.m. and joined Friedman and Dreyer at the bar (Cc Gamzon: 427). Meanwhile, MAURA CROWLEY JANNY™, GAIL BERKLEY and ANASTASIA PULSKAMP, co-workers who had stopped by the El Rio Grande at around 8:00 p.m. for drinks and dinner, sat at the bar (A danny: 113-115, 117, 131; ¢ Berkley: 397- 398, 404; C Pulskamp: 411-412). Defendant, who was with @ group nearby, approached all three women and started a conversation during the course of which it came out that Janny was drinking plain ginger ale and had a serious “The El Rio Grande is a Tex-Mex restaurant divided into two areas. On the 37th Street side (South) is a Mexican style bar and restaurant and on the 38th Street side (North) is a Texas style bar and restaurant (A Sterry: 21-22). “subsequent to the incident Ms. Crowley married and adopted the surname Janny. boyfriend (A Janny: 117-118, 124, 132; C Pulskamp: 414). At one point, defendant asked Janny her name. When she responded "Maura," defendant stated, "what kind of a fucking name is Maura?" Finding defendant’s comment rude and obnoxious, Janny informed him of her name’s Gaelic origins and left to strike up a conversation with Priedman (A Janny: 118-119, 121-122, 130-142). Defendant remained talking with Berkley and Pulskamp, for whom he bought a drink (C Pulskamp: 415). on staff October 1, 1991, providing service to the patrons of the "Texas" area of El Rio Grande were MICHAEL AMY STERRY, ELIZABETH SWAYZE, ROBERT TAYLOR, and WILLIAM SHIELDS. Sterry started her shift at 4:30 p.m. and as the manager she was responsible for overseeing the staff, reservations, seating, receipts and customer satisfaction (A Sterry: 22-24, 61). She had been a manager for six months, during which time she saw defendant approximately five times (A sterry: 22, 24-25, 69, 74-75, 77). Swayze, who had worked at the restaurant for three and a half years, was the primary bartender that night and Shields, who maintains and tends the bars, assisted her until the after-work rush subsided (B Swayze: 172, 187, 212; B Shields: 370). Both Swayze and Shields knew defendant as a "regular" customer and good tipper (B Swayze: 181, 216- 217; B Shields: 371-372) ‘Taylor, the bouncer for the prior three years, came on duty at around 7:00 p.m. and -5- was responsible for watching for trouble (B Taylor: 227, 228, 231, 252, 255; A Sterry: 50, 93). At around 8:45 p.m., as Friedman and Janny were talking at the bar, defendant stepped between them, interrupting their conversation (C Friedman: 474-475, 535; A Janny: 123; B Dreyer: 302, 343;). With his face ten inches from Friedman‘s face, defendant said, "[w]hat are you doing talking or hanging out with this fucking loser? Don’t even waste your time. She’s got a boyfriend. You got no chance." Friedman was taken aback and simply said, "[djon’t be a schmuck," dismissing defendant's interruption. Defendant followed up with, “[y]our mother’s a schmuck," and walked away. Friedman and Janny vesumed their discussion (C Friedman: 474-476, 535; A Janny: 123-124, 144; B Dreyer: 302, 304-305, 341, 343, 347). Shortly thereafter, defendant asked Swayze for his tab and presented his credit card for payment (B Swayze: 186, 208; B Shields: 373). Defendant signed the credit slip and kissed Swayze on the cheek as he said, " [g]ood night, I will see you. I love you" (B Swayze: 186, 211). Dreyer and Pulskamp recalled at trial that defendant had been among a loud, obnoxious crowd for whom he had ordered numerous drinks (B Dreyer: 330, 339; C Pulskamp: 415). However, the members of the bar staff recalled that defendant, who had been served perhaps three or four -6~ shots of vodka over the course of around three hours, did not seem impaired (B Swayze: 184; B Shields: 374, 386- 387; B Taylor: 265-266). It appeared that the defendant and his friends were preparing to leave (A Sterry: 27, 86). Instead, defendant interrupted Friedman and Janny for the second time (c Friedman: 477-478, 529; B Dreyer: 306-307; A Sterry: 51). Getting "in" Friedman’s face, defendant said, "[nJext time you say something like that I/11 kill you, I/11 rip your fucking head off and shove it down your throat." Friedman responded, “okay, okay, sure," but did not physically react and remained with his back to the bar (A Janny: 126; A Sterry: 52, 83). Defendant then started to poke Friedman in the chest, saying, "I/1l do it. 1/11 kill you. 1/11 kill you" (c Friedman: 478, 536, 540). Defendant next commented about Friedman’s mother performing oral sex and pushed Friedman; Friedman pushed defendant’s hand away (C Friedman: 478, 541; A Janny: 125, 127, 145, 151-152, 157, 159). This led to screaming and pushing between the two men (A Sterry: 53-54, 91). Sterry alerted the bouncer, Taylor, to the commotion (B Taylor: 236, 263, 266-267). Taylor walked up to the men and said, "okay, let’s break it up," as he put his hand on defendant’s shoulder (B Taylor: 238-239, 269). No sooner had Taylor done that when defendant picked up a margarita glass, tossing its contents in the air as he jerked it from the bar, and smashed it upon the bar on the down stroke. With the glass shard in his hand defendant then slashed Friedman’s face (C Friedman: 479; A Sterry: 53-54, 92; B Taylor: 240, 270-271; B Dreyer: 308, 348, 351; C Gamzon: 413-432). Taylor pulled defendant off Friedman and had to restrain him from continuing to punch the "slashed man" (B Taylor: 241, 273; B Swayze: 190; A Sterry: 55-56; C Gamzon: 433; B Dreyer: 310, 349; A Janny: 129-130, 156). Defendant now started to argue with Friedman’s friend Dreyer, calling him a "kike" and saying something about a "nazi" (C Gamzon: 434) As Taylor got defendant to the stairs defendant said, “[y]our mother sucks my dick. I fucked your sister," whereupon he picked up another piece of broken glass and started to go after Dreyer (B Taylor: 243-244, 280). As he lunged at Dreyer defendant said, "I am going to kill you, motherfucker. You faggot. Your mother’s a whore. Some black nigger fucked your mother" (B Dreyer: 313-315, 353, 356). Taylor grabbed defendant and threw him down on the ground (B Taylor: 244, 277). Defendant threw the second piece of glass towards the other patrons (B Taylor: 244; B Swayze: 190-191, 222; A Janny: 156, 158). By this time Shields had come out of his office answering a call for assistance (B Shields: 375). He saw Friedman bleeding profusely, with blood squirting from his face, so he applied pressure and ice to stem the bleeding (B Shields: 376, 379; B Taylor: 242; B Swayze: 193-194). Defendant left the premises, accompanied by sone friends, and walked on East 38th Street towards Third Avenue (B Taylor: 248-249; A Sterry: 59-59, 98-99). As Dreyer followed defendant and his friends down the block he called out, "{w)hat’s your name tough guy?" To which defendant responded, "[w]hat’s yours? You are probably some kike motherfucker" (B Dreyer: 315, 356). Defendant was pulled across the street by his friends and they ran inside a restaurant/bar. Dreyer then called 911 (B Dreyer: 316, 353-354). At around the same time, Lieutenant FRANK WEISSMAN of the Auxiliary Police was traveling north on Third Avenue and was flagged down by Dreyer (B Dreyer: 317, 358; B Weissman: 286). Dreyer directed Weissman to defendant’s location. within seconds additional regular police officers arrived (B Dreyer: 317; B Weissman: 287). At approximately 9:40 p.m., Police Officer JAMES MORAN placed defendant under arrest (B Moran: 292, 292A, 292D). Defendant's attitude was reasonably cooperative (B Moran: 292E; F Moran: 793). When asked what happened, defendant said he "was ganged up on and just trying to get away," and that he "didn’t slash anyone." In addition, defendant provided Moran with an inaccurate name, date of birth, social security number, and marital status (F Moran: 792).” Meanwhile, Emergency Medical Services (EMS) had responded and transported Friedman to Bellevue Hospital Trauma Center (B Shields: 381, B Dreyer: 319-320). From there Friedman went to NYU Hospital, where he was admitted in the early morning of October 2, 1992 (C Friedman: 488; C Gamzon: 437-438). | Dreyer, who accompanied him, noted that, “you could see the inside of his cheek bones" (B Dreyer: 321-322). DR. ARMEN KASABIAN, a plastic surgeon and the chief of micro surgery at NYU medical center, found that Friedman had multiple lacerations on the right side of his face (D Kasabian: 561, 564, 575-577, 579; People’s Exhibits 5-8). In particular, Friedman had one laceration that extended for about three inches in front of his ear from which blood was “pumping” (D Kasabian: 564). Kasabian determined that the “injuries were too big to take care of in the emergency room" and ordered an operating room prepared (D Kasabian: 565). “Defendant’s statements were suppressed on the People’s direct case, but came in to impeach his testimony. -10- once Friedman was anesthetized, Kasabian explored the wound and found it to be “much deeper than just superficial." In fact, the slash penetrated through the skin, fat, fine muscles, nerves, and muscles used to chew (D Kasabian: 565). In addition, there was an open fracture of the malar and maxillary bones (D Kasabian: 583). Kasabian performed close to five hours of surgery requiring the use of a microscope with sutures and needles thinner than a hair (D Kasabian: 567-568). Following surgery, Friedman could not close his right eye, smile properly, or open his mouth without pain, which was indicative of facial nerves being cut (D Kasabian: 569). Friedman spent two days in the hospital, his jaw immobile and subject to pain and swelling (C Friedman: 491). The swelling subsided during the following weeks, but Friedman still could not fully open his mouth (C Friedman: 494). Subsequent to this first surgery, a CAT scan revealed another foreign object in the masseter muscle which was inhibiting Friedman’s ability to chew and otherwise move his mouth (D Kasabian: 569). Due to the high risk of damaging the nerves involved, Kasabian elected to remove the foreign object by operating from inside Friedman's mouth (D Kasabian: 570, 599). During this second surgery, Kasabian removed an irregular piece of glass from the muscle site of the original injury (D Kasabian: 571-572). As a result of Friedman’s injuries he will have a permanent cosmetic deformity, and a permanent problem with chewing on the right side of his mouth. A year after the assault Friedman’s facial motor nerve had improved but still functioned only at around 95% (D Kasabi. : 573, 601, 603; People’s Exhibit 9). At trial, Friedman displayed four scars, the largest of them measuring around three inches, on the right side of his face (C Friedman: 498; People’s Exhibits 3 & 4). The Defendant’s Case In October of 1991, defendant FELIX SATER, at twenty-six years of age, was employed as a financial consultant by Shearson Lehman Brothers. Defendant had worked at several investment compani: since graduating high school and completing some college credits (E Sater: 4-7, 49). Defendant had come to the El Rio Grande restaurant and bar "maybe more" than four times a month for the past four or five years prior to October 1, 1991 (E Sater: 7) In fact, he knew the bartenders “Bill” and "Beth" a: “pest you could know a bartender in a place you frequent" (B Sater: 10). On October 1, 1991, defendant arrived at El Rio Grande between 7:00 and 7:30, to meet some friends (E -32- Sater: 8, 41, 43). Among those in attendance were SALVATORE MORREALE, NICHOLAS LOBOSSO, and GENE KLOUTSMAN (F Morreale: 756; F LoBosso: 768; F Kloutsman: 732, 734). Defendant ordered a shot of vodka with a side of coca cola and opened a bar tab on which a number of people put drinks (E Sater: 12, 35, 56, 73-74). During 2 or 2 1/2 hours defendant was served two or three of the "same" drinks and some tortillas (E Sater: 12, 34, 45, 58). Janny, Berkley, and Pulskamp were seated close to defendant's crowd of friends so he spoke with them, but not at length (E Sater: 16). Defendant ended up talking more to Pulskamp as Janny “drifted off" (E Sater: 14, 18, 61-62). Berkley said, "there she goes again" when she noticed Janny, who had a serious boyfriend, talking to Friedman (E Sater: 19). At about 8:30 p.m., defendant left his friends to place a telephone call to his wife (E Sater: 18, 19, 46, 63). As defendant walked by he leaned over to Friedman and said, "she’s got a boyfriend" as a joke (E Sater: 19, 67, 68). Friedman responded, “hey, asshole tell your story walking." Defendant retorted, "tell your mother her son’s an asshole," and walked away (E Sater: 20, 46, 63, 70, 72). When defendant returned to the bar he had a "nice" conversation with "Beth", the bartender, as he paid his check. He gave her a “friendly” kiss on the cheek and Eras followed his friends towards the door (E Sater: 21-22, 73, 76; F Kloutsman: 737). Defendant had not drunk excessively, was not intoxicated "at all" and left ina good mood (E Sater: 16, 45, 58; F Kloutsman: 736, 749; F Morreale: 760, 763; F LoBosso: 771). As defendant stood at the steps of the exit he overheard Friedman say something like, "hey asshole, tell your mother," but did not hear the balance (E Sater: 23, 78). At that point, defendant went up to Friedman and said, "{wjhat the fuck’s your problem?" Friedman said, "I don’t have a problem, your mother does," whereupon defendant "grabbed" Friedman and "pushed" him against the bar (E Sater: 23-24, 79-82; F Kloutsman: 740). After defendant pushed Friedman, Friedman came back and kneed defendant in the stomach. When defendant gained his footing he ran at Friedman and tried to punch him in the face, but missed (E Sater: 25, 84-85; F Kloutsman: 740). Friedman grabbed a beer bottle from the bar (F Kloutsman: 741). Defendant put his hand out, grabbed the first thing his hand hit, swung it at Friedman, and "obviously" hit him (E Sater: 26, 87-88, 91; F Kloutsman: 746-747). As defendant was being pulled out of the bar he was “trying to get back in the fight" while “cursing some obscenity" (E Sater: 27, 93-94). Once outside El Rio Grande, defendant was escorted by two friends to the northeast corner of 38th Street and 5 Third Avenue where Auxiliary Police Officer Weissman approached them (E Sater: 28, 30, 95; F Kloutsman: 742). Defendant walked back to the restaurant, was arrested and was taken to the 17th Precinct. subsequently, defendant complained of stomach pains and was transported to Bellevue Hospital (E Sater: 32, 50). At trial, SUSAN KOREY, TONY SEIDEN, and JOHN DOUKAS all testified to knowing defendant and that his reputation in the community was one of peacefulness and truthfulness (E Korey: 113-118; E Seiden: 120-122; F Doukas: 784-788). POINT I DEFENDANT’S GUILT WAS PROVED BEYOND A REASONABLE DOUBT (and is not contested on appeal), On October 1, 1991, defendant, apparently angered that Stephen Friedman was engaged in conversation with a woman who had rejected defendant, smashed a glass and slashed Friedman’s face. After the severed muscles and nerves were sutured through microsurgery, a second operation had to be performed to remove additional glass and partially restore nerve and muscle function. Based on those facts defendant’s jury convicted him of Assault in the First Degree. On appeal, defendant does not directly challenge the sufficiency of the People’s evidence establishing his guilt. He does claim, however, in support of his -15- argument that the court should have submitted the lesser included offense of reckless assault, that the proof that he acted intentionally when he slashed Friedman was negated by “ample evidence of intoxication" (Defense Brief at 17-19). Furthermore, defendant suggests that the evidence adduced does not convincingly support a finding of serious physical injury (Defense Brief at 25). ‘Those claims are frivolous. In order to establish defendant’s guilt of Assault in the First Degree, the People were required to prove that defendant intended to cause serious physical injury to Friedman and caused such serious physical injury by means of a deadly weapon or dangerous instrument. People v. Segal, 54 N.¥.2d 58, 66 (1981); Penal Law §§ 10.00(10), 10.00(13), 120.10(1). Moreover, since a defense of justification was asserted at trial, the People were also required to prove that defendant did not act in self defense. People v. Steele, 26 N.¥.2d 526, 528 (1970); Penal Law § 25.00(1). Each of these elements was proved at trial beyond a reasonable doubt. It is undisputed that defendant was present at El Rio Grande on the evening of October 1, 1991, and there fought with Friedman, striking him in the face with a broken glass. The testimony of Stephen Friedman and Dr. Kasabian, as well as the photographic exhibits at trial, established beyond a reasonable doubt -16- ca that Friedman’s injury was serious. See People +. 111 A.D.2d 183 (2nd Dept. 1985) ("serious and protracted disfigurement" was found where victim suffered two knife cuts, one of which was to the neck resulting in a substantial scar); People v. Williams, 96 A.D.2d 740 (4th Dept. 1983) (lacerations requiring double layer of sutures to close and leaving a permanent scar constituted serious physical injury); People v. Salisbury, 64 A.D.2d 763 (3rd Dept. 1978) (fractures alone constituted serious physical injury). In the instant ca: Dr. Kasabian testified that the wounds Friedman sustained were tco rious to be handled in the emergency room, instead requiring an operating room. He performed microsurgery for some five hours in order to repair broken malar and maxillary bones, severed muscles, and nerves. Friedman has only recovered around 95% use of his facial motor function. In addition, Friedman will have permanent facial scarring and difficulty chewing on the right side. The trial evidence also proved beyond a reas: nable doubt that defendant intended to inflict serious physical injury upon Friedman. The blow to Friedman’s face was the culmination of an encounter in which defendant flew into a rage. Friedman testified that defendant rudely interrupted his conversation with Janny, not once but Although the only response Friedman had the first time was to tell defendant, "don’t be a schmuck," during -17- the second encounter defendant poked Friedman in the chest and said, "[nJext time you say something like that 1/11 kill you, 1/11 rip your fucking head off and shove it down your throat." Seconds later, amid additional cursing, defendant slashed Friedman. Defendant’s own words are inconsistent with any intent but the obvious: to inflict serious physical injury. And defendant’s actions spoke even louder than his words. Sterry, the bar manager, testified that she had an unobstructed view of defendant’s actions from the hostess stand. Sterry saw defendant pick up a margarita glass, tossing its contents in the air as he jerked it from the bar, and smash it upon the bar on the down- stroke. And with the glass shard in his hand defendant then slashed Friedman’s face. Defendant did not stop at that: after the blow he attempted to free himself from those restraining him so that he could continue his assault. Indeed, Friedman’s injury would very likely have been far more serious had defendant not been restrained and pulled from the scuffle, frustrating defendant’s announced goal of inflicting a fatal wound. People v. Patterson, 118 A.D.2d 665 (2nd Dept. 1986) (evidence that a defendant stabbed his victim in the head with a knife was sufficient to show defendant’s intent to cause serious physical injury). Nor was defendant so intoxicated as to create any doubt about his ability to act intentionally. While two of Friedman’s friends characterized defendant as "loud" and acting in a "drunk kind of fashion," those who had a prolonged opportunity to observe defendant noted his demeanor as unremarkable. Indeed, even defendant stated emphatically that he was not intoxicated on October 1, 1991. Moreover, defendant, though he claimed justification, admitted he grabbed an object and hit Friedman. The jury could only conclude that the injury he inflicted was no reckless injury, but an intentionally-caused one. Finally, the evidence adduced at trial showed overwhelmingly that defendant did not act in self defense. In inflicting the slash wound upon Friedman, defendant plainly used deadly physical force. Penal Law § 10(11). Defendant would have been justified in using such force only if he reasonably believed that Friedma: was using or was about to use such force on him. Penal Law § 35.15(2) (a); People v. Goetz, 68 N.Y.2d 96 (1986). The evidence in the record demonstrates overwhelmingly that defendant could not have formed a reasonable belief that he was justified in using deadly physical force against Friedman. Friedman was seated conversing with Janny when defendant walked up, threatened to kill him, and shoved his chest, thereby -19- pinning Friedman’s back to the bar. Friedman’s only physical reaction was to deflect defendant’s hand. More significantly, the uncontroverted evidence shows that defendant was the initial aggressor at the level of “deadly physical force." No one but defendant and a friend asserted that Friedman reached for a bottle, and the jury could reject that obviously interested assertion. Finally, defendant had his back towards the exit providing an avenue for him to retreat. Nevertheless, defendant chose to continue to fight and had to be pulled off the victim. Moreover, defendant evinced awareness of his own guilt in the wake of the slashing. Defendant left a blood soaked victim and was a block away when a witness alerted police to his location. Further, when asked what happened by the police defendant claimed that he "w ganged up on and just trying to get away" and "didn’t slash anyone." In addition, defendant provided the police with an inaccurate name, date of birth, social security number, and marital status. such deceptions by defendant only served to support the People’s theory that the slashing was deliberate and unjustifiable. In sum, the evidence overwhelmingly established that defendant was the initial aggressor and unjustifiably slashed Friedman in the face with a weapon he fashioned from a margarita glass, intending to cause and causing ~20- serious physical injury. The jury’s guilty verdict had ample support in the evidence. Accordingly, the verdict should not be disturbed. POINT IL THE COURT PROPERLY DENIED DEFENDANT’S REQUEST FOR THE SUBMISSION OF ASSAULT IN THE SECOND DEGREE AS A LESSER INCLUDED OFFENSE (Answering Defendant's Brief Point I. pp. 12-25) _ Defendant stands convicted of intentional Assault in the First Degree, for causing serious physical injury to Stephen Friedman with a dangerous instrument. on appeal, defendant argues that Assault in the Second Degree should have been submitted to the jury as a lesser included offense under two theories: 1) that defendant recklessly caused serious physical injury (Penal Law §120.05(4)); and 2) that defendant intentionally caused physical injury with a dangerous instrument (Penal Law § 120.05(2)). Defendant’s position is untenable. To begin, defendant’s position on appeal bears sparse resemblance to his position at trial. at the close of evidence, defendant requested that the court charge the jury on Assault in the Second Degree under subsection 1 Penal Law §120.05 as a lesser included offense of Assault in the First Degree. In particular, defendant stated: Your Honor, it is my under reading -- I am looking at 120.05 subsection 1. Assault in the second degree is defined, with the intent E18 to cause serious physical injury to another he causes such injury to such person; or with the intent to cause physical injury he causes such injury to such person by means of a deadly weapon or dangerous instrument. Thus, while specifically citing subsection 1, defendant eferred to the language in both subsections 1 and 2 (F Proceedings: 803). As his sole reason for requesting those charges, defendant stated his belief that based on the evidence presented the jury could find “physical injury as opposed to serious physical injury" (F Proceeding: 804). Defendant made no reference to subsection 4 of Assault in the Second Degree, which deals with recklessly causing serious physical injury with a dangerous instrument. Rather, defendant asked for a charge of Assault in the Third Degree under the theory that defendant recklessly caused physical injury (F Proceedings: 804-805). Taose requests were correctly denied by the trial court. True, they and defendant’s appellate theories accord with the first portion of the two-prong test the court must apply in determining whether it must submit a lesser included offense, C.P.L. §1.20(37); see People v. Glover, 57 N.Y.2d 61 (1982). ‘That is, it is impossible to commit the crime for which defendant was indicted without also committing the lesser offenses herein discussed. But for none of the requested charges below and none specified on appeal, was there a reasonable view -22- of the evidence that only the lesser offense was committed. More particularly, a court is required to submit a lesser included offense only if both portions of a two- pronged test are met. First, abstract comparison of elements must demonstrate that in all circumstances, not simply those presented in the particular case, it is impossible to commit the greater offense without at the same time committing the lesser crime. Second, and for our purposes importantly there must be a reasonable view of the evidence in the particular case supporting a finding that the defendant committed the lesser but not the greater crime. People v. Glover, 57 N.¥.2d 61, 63-64 (1982). This latter standard does not assume a right of the jury “to engage in a wholly arbitrary, even irrational, selection from the proof." People v. ‘Scarborough, 49 N.Y.2d 364, 372 (1980). Rather, there must be “some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser charge...." Id. at 369-370. Thus, the court correctly rejected defendant's request for submission of subsection 1 of Assault in the Second Degree. Although the mental culpability and level of injury are the same for subsection 1 of Assault in the -23- First Degree and subsection 1 of Assault in the Second Degree, the latter requires no finding of use of a dangerous instrument. Plainly, there was no reasonable view of the evidence that the assault committed in this case did not involve the use of a dangerous instrument. At trial, sterry testified that defendant picked up a margarita glass, .ssthrew it up in the air so that a full margarita splashed onto myself and other people around. And then brought it down on the side of the bar and it smashed. And he then had the shard in his hand. And slashed the man like somewhere in this region. I wasn’t sure if it was the neck or face. And then I saw blood" (A sterry: 54). Dreyer also saw defendant smash the glass and strike Friedman (B Dreyer: 308, 348, 351). Friedman, the bouncer, and several other witnesses all heard a "crash" or the sound of breaking glass just before Friedman was injured (B Taylor: 240, 270-271; ¢ Friedman: 479; A Janny: 128, 154; B Swayze: 188-189, 213; C Ganzon: 431- 432). Significantly, even defendant admitted to grabbing the first thing on the bar and "obviously" hitting Friedman (E Sater: 26, 91-92). And, conclusively, Friedman's extensive injuries plainly were caused by a sharp instrument. It is undisputed and indisputable that a dangerous instrument was utilized by defendant. Since on no reasonable view of the evidence could it be said that defendant committed his assault without a dangerous instrument, the lessér offense did not have to be submitted. Next, the court correctly rejected defendant’s request for submission of subsection 2 of Assault in the Second Degree as a lesser included charge. That statute @iffers from Assault in the First Degree in that it forbids the intentional infliction of mere physical injury, rather than serious physical injury, by the use of a dangerous instrument. Thus, below defendant argued that, "[the jury] can find that the injuries would fall within the purview of the definition of the Penal Law of physical injury as opposed to serious physical injury." To the contrary, there was no reasonable view of the evidence whatsoever that the defendant inflicted less than serious physical injury. Indeed, such a view is absurd. “Serious physical injury" is defined 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 (Penal Law §10(10)). Here, the blow delivered by defendant caused several lacerations, the largest a three-inch bone-deep slice which severed skin, fat, fine muscles, chewing muscles and motor nerves, ‘Defendant did not argue below, as he does on appeal, that his intent might have been to inflict mere physical injury. See p. 31-32, infra. -25- broke two bones, required two operations, and had Permanent effects see pp.__, supra. Again, no reasonable of the evidence supports defendant’s trial request.” In short, the court below correctly rejected defendant’s trial requests to charge lesser included effenses. Not surprisingly, on appeal, defendant has changed his arguments. He now contends that the court committed reversible error by not submitting to the jury the lesser included offenses of Assault in the Second Degree under subsection 4, on the theory that he recklessly caused serious physical injury, and under subsection 2, on a theory that he intended to cause mere physical injury. But these issues are unpreserved and should be rejected (C.P.L. §470.05(2); see Beople v. Shin, 67 N.Y.2d 22, 34 (1986); People v. Karabinas, 63 N.¥.2d 871 (1984). Nor is that simply a technical deficiency, for if defendant had supported his request properly, directing the court’s attention to his current theories, he might have gotten such the charges he now requests. Indeed, the governing statute expressly states that failure to raise such issues below constitutes a “Furthermore, the court correctly denied defendant’s final request below for a charge of reckless Assault in the Third Degree (Penal Law §120.00(2); F Proceedings: 804-805). The: no reasonable view of the evidence to support that charge, as plainly defendant intended to injure Friedman (gee pp. 27, infra.). ~26- waiver by defendant. C.P.L. §300.50(1), (2); see People v. Green, 56 N.Y.2d 427-430 (1982). In any event, here as with the requests defendant did make, no reasonable view of the evidence supported the submission of reckless Assault in the Second Degree, as a lesser included offense. The evidence adduced provides no reasonable view that defendant acted with mere recklessness, and not intent, when he injured Stephen Friedman. Defendant’s intent was clear given his repeated threats to Friedman, "I/11 kill you" (Cc Friedman: 478, 536). And defendant’s intent was even more clear given that he fashioned a weapon by smashing a margarita glass, and gouged Friedman in the face (¢ Friedman: 477-478, 541; A Sterry: 53-54, 91-92; B Taylor: 241, 273). Then, unrelentingly, defendant continued to struggle to fight Friedman (B Taylor: 241, 273; B Swayze: 190; A Sterry: 55-56). At trial, when defendant was asked what he was doing as he was being pulled from the bar, he responded, "[t]rying to get back into the fight. And I believe I was cursing some obscenity at him" (E Sater: 27, 93-94). And although defendant suggests on appeal that he might have been too intoxicated to injure Friedman intentionally, no reasonable view of the evidence supports that he was so intoxicated as to have been unable to form intent, as required by Penal Law §15.25. -27- Defendant’s actions in the bar, while indefensible, plainly were those of an individual who could form a specific intent; for example, he paid his tab just before assaulting Friedman. © Defendant himself testified emphatically that he was not intoxicated "at all" (E Sater: 16, 45, 58), and that he swung at Friedman to defend himself. In addition, the bar staff, who knew defendant since he was a "regular" customer, had not only ample opportunity to evaluate defendant but a basis with which to judge his demeanor, and they said he was not intoxicated. While Stephen Friedman and his friends found defendant to be obnoxious, their testimony does not suggest that defendant was so drunk he could not form intent. And the objective evidence that defendant left the bar after the fight, and cooperated with the police, was entirely inconsistent with the view that he could not act intentionally.” Finally, defendant is wrong as well with regard to his new appellate theory in support of the submission of subsection 2 of Assault in the Second Degree. Defendant “It should perhaps go without saying that the intentional nature of defendant’s assault is not undercut counsel’s ploy of submitting an affidavit to for their signatures after trial, see defendant's brief at 20-21. As the trial assistant and court noted below (Sentencing: 15-18, 22-23), the circumstances under which those jurors signed the affidavits are unknown. And plainly the law does not look to the post-trial views of jurors to define reasonable views of trial evidence. ~28- posits for the first time on appeal that his intent might have been merely to cause physical injury. This is unsupported by the record. As set forth above, the evidence of defendant's intent to inflict serious physical injury was overwhelming, and was provided through the testimony of several witnesses. Friedman testified that defendant repeatedly proclaimed his intent not merely to injure but to kill. Indeed, had defendant not been restrained, Friedman’s injury may well have been even more serious than it was. Moreover, testimony as to the blow was not contradicted by any other evidence at all, but rather was corroborated by the defendant’s own words. Most importantly, defendant’s actions are entirely inconsistent with an intent to cause simple physical injury. He smashed a glass and slashed Friedman’s face to the bone. His intent to cause serious physical injury was unambiguous and undeniable. Finally, defendant’s reliance upon People v. Thomas, 178 A.D.2d 363 (1st Dept. 1991), is inapposite, for Thomas had nothing to do with the submission of lesser included offenses. In Thomas this Court said only that the evidence of the defendant’s guilt of reckless assault was, at the least, legally sufficient, but that circumstances evincing a depraved indifference to human life were not present. The Court in no way suggested -29- what lesser included offenses of intentional assault would have to be submitted on facts like ours, or suggested that those facts might reasonably support a verdict of not guilty of intentional assault, but guilty of reckless assault. In short, there was just no reasonable basis upon which inferences of lesser degrees of culpability could have been drawn from the evidence pre: nted to the jury. See People v. Navarette, 131 A.D.2d 326, 329 (1st Dept. | 1985), ly. denied, 70 N.Y.2d 705 (1987); see also People Vv. vteen, 56 N.Y.2¢ 427, 435 (1982). Thus, the trial court correctly found that no reasonable view of the evidence could establish defendant’s guilt of the lesser, but not the greater, degrees of assault: either on the theories defendant posed below, or the new theories See Reople v. Galvin, 65 N.¥.2d 761, 762 (1985); People v. Scarborough, 49 N.¥.2d at 373. presented on appeal. POINT IIT TRIAL COURT’S RULINGS WERE PROPER AND DID NOT EVIDENCE JUDICIAL BIAS (Answering Defendant's Brief? pp. 26-30 se ee ee eee Defendant asserts on appeal that the trial court evinced bias against him. In making that claim defendant complains of three rulings by the court: its denial of his request for an adjournment which supposedly deprived defendant of defense witnesses; its interference at one 30° point with his cross examination; and its response to a juror’s scheduling concerns. Defendant‘’s claims are utterly unfounded. A. The facts pertinent to defendant’s adjournment claim can be briefly stated. When this trial began the underlying indictment had been pending for well over a year." On February 5, 1993, prior to calling their first witness, the People requested a list of any potential def. witnesses. At that time defendant stated that he had prospective witnesses and would turn their names over as soon as he settled on who his witnesses would be (A Proceedings: 3). Six days into the trial, on Thursday, February 11, 1993, the People again requested the names of any defense witnesses. Defendant stated that he would turn over what he had at the lunch recess (C Proceedings: 395). Then, just before the court recessed for that day, defendant for the first time indicated without explanation that two of his witnesses would not be available until the following Thursday (C Proceedings: 559A). In his brief, defendant distorts the record in his recitation of the colloquy that then took place. In ‘A review of the case jacket reveals that the People requested a date certain for trial as early as June 16, 1992, and that it was defendant that requested a fall date to accommodate his schedule. -31- particular, when informed of defendant’s supposedly unavailable witnesses the court stated, "I’m sorry about that. You/1l have them here on Tuesday. If vou want. I411_aive you a material witness order. You get the material witness order. ‘11 put them in if necessary" (emphasis added). In response, defendant said, "I hear you." Defendant did not pursue the court’s offer. At no subsequent time did defendant indicate to the court the identity or whereabouts of the alleged witne: Nor aid defendant provide any specifics as to why they were unavailable, how they were material, and what, if any, efforts defendant made to secure their attendance. For those reasons, Justice Leff properly denied his request for an adjournment. And defendant made no further request for an adjournment before resting on Wednesday, February 17, 1993, after presenting seven witni Surely these facts do not support defendant’s claim ef error. The decision whether to grant an adjournment is entrusted to the sound discretion of the trial judge. Matter of Anthony M., 63 N.¥.2d 270, 283 (1984); People v. Foy, 32 N.¥.2d 473, 476 (1973); In_re Freire, 121 A.D.2d 285, 286 (1st Dept. 1986). While the trial court should not deny a request for a short adjournment solely for its own convenience when the denial would impinge upon a defendant’s right to present a defense, People v. Foy, supra, 32 N.¥.2d at 478, it must be established that =32- a defendant has a defense to present. specifically, a defendant is obliged to identify the witness to the court and to show that he has exercised both diligence and good faith in attempting to secure the witness’s presence. id-; In_xe_Freire, supra, 121 A.D.2d at 286. In addition, the defendant must establish through an offer of proof that the witness’s testimony will be material, noncumulative and favorable to the defense. See, 2.4, Matter of Anthony M., supra, 63 N.¥.2d at 283-284; People v. Daniels, 128 A.D.2d 632 (2d Dept. 1987). Here, defendant failed to make the requisite showing. First, defendant did not identity the witnesses to the court. Nor did defendant recount what efforts he made to secure their attendance, in over one year; nor did defendant offer an explanation why they could not come to court. Finally, defendant made no offer of proof to demonstrate their materiality as witnesses. In fact, so sparse is the record that it cannot even be said that defendant did not succeed in calling the witnesses about whom he spoke. On appeal, defendant simply ignores the deficiency in the offer of proof he made below. Fundamentally, it was incumbent on defendant and defendant alone to demonstrate that he needed an adjournment. He had every chance to make a record and elaborate on the substance of the witnesses’ potential testimony. Having failed to do ays"