UNITED STATES of America, Appellee, v. Donovan McKENZIE, Defendant-Appellant, 597 F. App'x 24

SUMMARY ORDER Defendant-Appellant Donovan McKenzie appeals from an April 21, 2014 Memorandum and Order entered by the United States District Court for the Eastern District of New York (Wexler, J.), which affirmed his conviction on one count of simple assault, in violation of 18 U.S.C. § 113(a)(5). We assume the parties’ familiarity with the underlying facts, procedural history, and the issues on appeal. McKenzie was adjudged guilty of simple assault by Magistrate Judge Lindsay in an oral decision on December 11, 2012 at the conclusion of a one-day bench trial.

On July 16, 2013, Magistrate Judge Lindsay sentenced McKenzie principally to two years’ probation and anger-management counseling. On August 13, 2013, McKenzie appealed his conviction to the United States District Court for the Eastern District of New York, contending only that'his trial counsel rendered ineffective assistance. The district court affirmed his conviction, finding that McKenzie’s trial counsel was not ineffective in failing to call an expert witness, who was to testify that the victim of McKenzie’s assault, Allison White, had a pre-existing wrist injury. We agree with the district court.

Injury is not a required element of a simple assault, a term grounded in common law that encompasses a completed common-law battery, defined as “the unlawful application of force to the person of another, including an offensive touching.” United States v. Delis, 558 F.3d 177, 180 (2d Cir.2009) (internal quotation marks omitted). A conviction for simple assault under

section “113(a)(5) for conduct constituting common-law battery does not require any finding of specific intent to injure,” id. at 184, let alone actual injury. Accordingly, evidence about White’s pre-existing injury would have been irrelevant to whether McKenzie’s prolonged and forceful gripping of White’s wrist was offensive. Indeed, Magistrate Judge Lindsay had already excluded, in response to a motion in limine, all such evidence if offered for purposes other than' impeachment.

Notwithstanding any injury that may have resulted, there was ample evidence received at trial to establish that McKenzie offensively touched White. In short, there is no merit to McKenzie’s argument that “(1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.” Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir.1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We have considered all of McKenzie’s remaining arguments and find them to be without merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.