State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 12, 2015 104886 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

DEREK HEYLIGER,

Appellant.

________________________________

Calendar Date: January 6, 2015

Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Teresa C. Mulliken, Harpersfield, for appellant, and

appellant pro se.

Gerald F. Mollen, District Attorney, Binghamton (Sophia

Bergman of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Broome County

(Smith, J.), rendered January 18, 2012, upon a verdict convicting

defendant of the crimes of assault in the first degree and

criminal possession of a weapon in the second degree (two

counts).

Defendant was indicted for assault in the first degree and

two counts of criminal possession of a weapon in the second

degree. The charges arose from an early morning incident on

August 15, 2010 at an after hours club in the City of Binghamton,

Broome County. The victim, who was shot in the right leg, did

not identify defendant as the shooter either at the hospital

following the incident or, approximately two weeks later, when he
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was shown a photo array containing a photograph of defendant. In

February 2011, after the victim was arrested on narcotics and

weapon possession charges, he told police that it was defendant

who shot him on August 15, 2010. The jury found defendant guilty

as charged and he was sentenced to an aggregate term of 14 years

in prison, with five years of postrelease supervision. Defendant

now appeals.

Defendant contends that the jury's verdict on the assault

conviction was not supported by legally sufficient evidence and

was contrary to the weight of credible evidence. A defendant is

guilty of assault in the first degree where he or she, with the

intent to cause serious physical injury to another, causes such

injury by means of a deadly weapon or a dangerous instrument (see

Penal Law § 120.10; People v Daniels, 97 AD3d 845, 847 [2012], lv

denied 20 NY3d 931 [2012]). A serious physical injury is one

that "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 § 10.00 [10]; see People v Daniels 97

AD3d at 847). Here, at the close of trial, defendant moved for a

trial order of dismissal (see CPL 290.10 [1]) on the ground that

the evidence showed that the victim shot himself with a gun that

he had tucked in the waistband of his pants. By this motion,

defendant did not preserve his legal insufficiency claim on

appeal with regard to the People's proof on the element that the

victim suffered a serious physical injury. Nevertheless, we

evaluate the adequacy of the evidence as to each element of the

crime as part of our weight of the evidence review (see People v

Santiago, 118 AD3d 1163, 1164 [2014], lv denied 24 NY3d 964

[2014]; People v Greenfield, 112 AD3d 1226, 1226 [2013], lv

denied 23 NY3d 1037 [2014]). 

At trial, the victim testified that while at the club, he

felt someone tugging on the chain necklaces that he was wearing

and, when he looked down, he saw the gun pointed to his chest. 

He testified that he pushed defendant's hand that was holding the

gun down, and the gun discharged. The People also presented

testimony by Lacy Becker, defendant's ex-girlfriend, Gloria

Crowder, the owner of the club, and Claretha Shorts, a mutual

friend of both defendant and Crowder. Becker testified that
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defendant told her he shot the victim; Crowder and Shorts

testified that defendant asked Shorts to tell Crowder he was

sorry "[f]or shooting some boy in the restaurant." 

In contrast, defendant testified that as he was walking

through the club, the victim "bumped [him] really hard" and, when

defendant protested, the victim lifted his shirt to reveal the 

gun tucked in his pants. Defendant explained that, in response,

he "pushed [the victim] really hard, boom, pow, gunshot went

off." Defendant also presented the testimony of a private

investigator, David Beers. Beers testified that after examining

the bullet holes in the clothing that the victim had been wearing

the night he was shot, he believed that "a projectile penetrated

[his boxer shorts] at an angle" and that, based on the charring

around one bullet hole in the boxer shorts, the gun was fired at

"extremely close" range, indicating that the victim had shot

himself. After hearing all the evidence, the jury rejected

defendant's version of the events. We find that, when viewed in

the light most favorable to the People, the evidence was legally

sufficient to allow the jury to infer that defendant shot the

victim (see People v Thomas, 105 AD3d 1068, 1070 [2013], lv

denied 21 NY3d 1010 [2013]; People v Baker, 27 AD3d 1006, 1009

[2006], lv denied 7 NY3d 785 [2006]). 

Although a different verdict would not have been

unreasonable, viewing the evidence in a neutral light (see People

v Danielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d

490, 495 [1987]), we further perceive no error in the jury's

finding that the victim suffered a serious physical injury. 

Alberto Bartoli, a vascular surgeon, testified that the bullet

did not strike or damage any artery in the victim's leg and that

the gunshot wound initially appeared to be superficial. The jury

also heard from John Penfield, the emergency room doctor, who

testified that when the victim arrived at the hospital, he was

bleeding so profusely that he left a trail of blood on the floor. 

Further, Penfield testified that the gun shot caused a fracture

and other injuries to the victim's leg and knee that could cause

permanent disability and disfigurement. The victim confirmed

that he could not bend his leg for nearly a year after the

shooting and, at trial, he still did not have full range of

motion. In our view, the medical evidence and testimony of the
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victim established a protracted impairment of the victim's health

pursuant to Penal Law § 10.00 (10) (see People v Khuong Dinh

Pham, 31 AD3d 962, 965-966 [2006]). 

We also reject defendant's argument that County Court erred

in determining that the victim's identification of defendant from

a police photo array was confirmatory. The hearing and notice

requirements of CPL 710.30 do not apply if the witness is

"sufficiently familiar with the defendant such that there is

little or no risk that police suggestion may have led to

misidentification" (People v Miller, 93 AD3d 882, 884 [2012], lv

denied 19 NY3d 975 [2012] [internal quotation marks and citation

omitted]; see People v Rodriguez, 79 NY2d 445, 450 [1992]). 

Here, the victim testified that, although they had never been

formally introduced, he had known defendant, who he called "D,"

for about 10 years from seeing him at different parties and clubs

in Binghamton and from his acquaintance with an individual who

was either defendant's brother or cousin. The victim explained

that he did not identify defendant initially at the hospital or

when he was first shown a photo array because he was in fear for

his own safety. In our view, the victim's uncontroverted

testimony was sufficient to establish his familiarity with

defendant (see People v Carter, 57 AD3d 1017, 1018 [2008], lv

denied 12 NY3d 781 [2009]; People v Graham, 283 AD2d 885, 886-887

[2001], lv denied 96 NY2d 940 [2001]). 

We discern no error in County Court's determination to

allow the People to recall investigator Matthew Zandy to testify

in rebuttal after Beers testified that the victim was shot at

close range. A trial court has discretion to permit the People

to present evidence in rebuttal that, more properly, should have

been presented in their case-in-chief (see CPL 260.30 [7]; People

v Whipple, 97 NY2d 1, 6 [2001]; People v Harris, 57 NY2d 335,

345-346 [1982]; People v Rogers, 81 AD3d 1185, 1186 [2011], lv

denied 16 NY3d 899 [2011]). Here, County Court acted within its

discretion in allowing the People to recall Zandy to explain how

the damage to the victim's clothing indicated that the gunshot

was not fired at close contact. We further disagree with

defendant's argument that Zandy was not properly qualified as an

expert witness. The admissibility of expert testimony is a

matter within County Court's sound discretion (see People v
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Bedessie, 19 NY3d 147, 156 [2012]; People v Surdis, 77 AD3d 1018,

1019, [2010], lv denied 16 NY3d 800 [2011]). Here, the testimony

with regard to Zandy's education, training and practical

experience provide ample basis for County Court's determination

to qualify him as an expert (see People v Menegan, 107 AD3d 1166,

1168 [2013]; People v Wyant, 98 AD3d 1277, 1278 [2012]). 

Finally, we have considered defendant's pro se supplemental

brief. To the extent that he raises claims that are outside of

the record, such claims are more properly addressed in a motion

pursuant to CPL article 440 (see People v Malcolm, 74 AD3d 1483,

1486 [2010], lv denied 15 NY3d 954 [2010]). As to defendant's

claim that he received ineffective assistance of counsel, viewing

the record as a whole, and even accepting that errors may have

occurred, we find that defendant received meaningful

representation (see People v Baldi, 54 NY2d 137, 147 [1981]).

Garry, J.P., Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court