| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
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The PEOPLE, etc., Respondent.
v.
Akbar RAZACK, Appellant.
Supreme Court, Appellate Division,
Second Department.
Sept. 27, 1993.
Defendant was convicted in the Supreme Court, Queens County, Harbater, J., of assault in the second degree. Appeal was taken. The Supreme Court, Appellate Division, held that: (1) jury's request for "readback" of direct and cross- examination of several witnesses required trial court to order court reporter to read back entire relevant portion of complaining witness' cross-examination after omissions were brought to trial court's attention by defense counsel; (2) failure to order "readback" of cross-examination was not reversible error, absent showing of serious prejudice; and (3) sentence of indeterminate term of two to six years imprisonment was excessive, in light of circumstances of assault at family party, defendant's stable work history, and recommendation of probation department.
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
Affirmed as modified.
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
People v. Razack
[1] KeyCite this headnote
 110 CRIMINAL LAW
110XX Trial
110XX(J) Issues Relating to Jury Trial
110k859 k. Reading minutes of or restating testimony.
N.Y.A.D. 2 Dept.,1993.
Jury's request for "readback" of direct and cross-examination of several witnesses required trial court to order court reporter to read back entire relevant portion of complaining witness' cross-examination after omissions were brought to trial court's attention by defense counsel.
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
People v. Razack
[2] KeyCite this headnote
110 CRIMINAL LAW
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1174 Conduct and Deliberations of Jury
110k1174(1) k. In general.
N.Y.A.D. 2 Dept.,1993.
Trial's court erroneous failure to order "readback" of entire relevant portion of complaining witness' cross-examination after omissions were identified was not reversible error, absent showing of serious prejudice.
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
People v. Razack
[3] KeyCite this headnote
110 CRIMINAL LAW
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1166.5 Conduct of Trial in General
110k1166.6 k. In general.
N.Y.A.D. 2 Dept.,1993.
Errors committed by trial court during assault trial were harmless in light of overwhelming evidence of defendant's guilt; assault occurred during family party and at least two witnesses testified that they saw defendant hit defendant's brother-in-law.
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
People v. Razack
[4] KeyCite this headnote
37 ASSAULT AND BATTERY
37II Criminal Responsibility
37II(C) Sentence and Punishment
37k100 k. In general.
N.Y.A.D. 2 Dept.,1993.
Sentence of indeterminate term of two to six years imprisonment for second- degree assault conviction was excessive, in light of circumstances of assault at family party, defendant's stable work history, and recommendation of probation department.
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
People v. Razack
[5] KeyCite this headnote
110 CRIMINAL LAW
110XXIV Review
110XXIV(U) Determination and Disposition of Cause
110k1184 Modification or Correction of Judgment
110k1184(4) Sentence or Punishment
110k1184(4.1) k. In general.
N.Y.A.D. 2 Dept.,1993.
Excessive sentence of indeterminate term of two to six years imprisonment for second-degree assault conviction would be modified in interest of justice by reducing term of imprisonment to 90 days to run concurrently with, and as condition of, term of five years probation.
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963) |
**964
| (Cite as: 196 A.D.2d 897, 601 N.Y.S.2d 963, **964) |
Addabbo & Greenberg, Forest Hills (Todd D. Greenberg, of counsel), for appellant.
Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Robin A. Forshaw, and Hermann P. Walz, of counsel), for respondent.
Before ROSENBLATT, J.P., and LAWRENCE, O'BRIEN and COPERTINO, JJ.
*897
| (Cite as: 196 A.D.2d 897, *897, 601 N.Y.S.2d 963, **964) |
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Harbater, J.), rendered July 17, 1992, convicting him of assault in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of two to six years imprisonment.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the term of imprisonment to 90 days, to run concurrent with, and as a condition of, a term of five years probation; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, to set the terms and conditions of probation, which shall include enrollment in an *898
| (Cite as: 196 A.D.2d 897, *898, 601 N.Y.S.2d 963, **964) |
alcoholic treatment program, and for further proceedings pursuant to CPL 460.50(5).
Viewing the evidence in the light most favorable to the prosecution (see,
| (Cite as: 196 A.D.2d 897, *898, 601 N.Y.S.2d 963, **964) |
People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence of physical injury was legally sufficient to support the verdict (see, People v. Greene, 70 N.Y.2d 860, 523 N.Y.S.2d 458, 517 N.E.2d 1344). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).
[1][2] During deliberations, the jury asked for a readback of the direct and cross-examination of several witnesses, including the testimony of the complaining witness with respect to his account of the assault. We find that the court erred in failing to direct the court reporter to read back the entire relevant portion of the complaining witness's cross-examination, once certain omissions were brought to its attention by the defense counsel. However, the court's failure to comply with a jury's request is not per se reversible error, absent a showing of serious prejudice (see, People v. Lourido, 70 N.Y.2d 428, 435, 522 N.Y.S.2d 98, 516 N.E.2d 1212; People v. Jackson, 20 N.Y.2d 440, 454, 285 N.Y.S.2d 8, 231 N.E.2d 722, cert. denied, 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668; People v. Jones, 106 A.D.2d 585, 483 N.Y.S.2d 89). We conclude that no serious prejudice was shown here (see, e.g., People v. Shaw, 158 A.D.2d 923, 551 N.Y.S.2d 87; People v. York, 133 A.D.2d 130, 518 N.Y.S.2d 665; People v. Jones, supra).
[3] In addition, while we agree with the defendant that the court committed
| (Cite as: 196 A.D.2d 897, *898, 601 N.Y.S.2d 963, **964) |
other errors during the trial, we conclude that those errors were harmless in view of the overwhelming evidence of the defendant's guilt. The assault occurred during a family party, and at least two witnesses testified that they saw the defendant hit the complaining witness, who was the defendant's brother- in-law.
[4][5] Considering the circumstances surrounding the assault, the defendant's stable work history, and the probation department's recommendation, we find that the sentence is excessive to the extent indicated. The defendant's remaining contentions are without merit.
END OF DOCUMENT
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