| People v Tsiklauri |
| 2017 NY Slip Op 03701 |
| Decided on May 9, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on May 9, 2017
Acosta, J.P., Renwick, Mazzarelli, Gische, Gesmer, JJ.
3941 4744/12
v
Rezo Tsiklauri, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Samuel E. Steinbock-Pratt of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brian R. Pouliot of counsel), for respondent.
Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered July 23, 2013, convicting defendant, after a jury trial, of assault in the second degree and resisting arrest, and sentencing him to an aggregate term of two years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. There was ample evidence of defendant's intent to resist arrest and prevent the injured officer from performing a lawful duty. Defendant repeatedly shouted "no," backed up against a wall, tried to keep his arms rigid at his sides so officers could not handcuff him, and grabbed and twisted one officer's wrist, causing torn ligaments in the officer's hand (see e.g. People v Spencer, 95 AD3d 781, 782 [1st Dept 2012], lv denied 19 NY3d 977 [2012]).
Defendant's challenge to the court's definition of reasonable doubt, given in response to a question from a prospective juror during the voir dire of one panel of jurors, is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. The court's charge, as delivered to all prospective jurors at the beginning of voir dire, and to the sworn jurors at the commencement of trial and prior to deliberations, accurately conveyed the concept of proof beyond a reasonable doubt, and the court's isolated misstatement during one round of voir dire does not warrant reversal (see People v Drake, 7 NY3d 28, 34 [2006]; People v Javier, 269 AD2d 182 [1st Dept 2000], lv denied 95 NY2d 798 [2000]). We have considered and rejected defendant's arguments that the misstatement interfered with his ability to question the panel of prospective jurors who heard it, and that counsel rendered ineffective assistance by failing to object to the misstatement.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2017
CLERK