| People v Dixon |
| 2009 NY Slip Op 03637 [62 AD3d 1036] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AshtonDixon, Also Known as Ashmatic, Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Ulster County (Bruhn, J.),rendered December 17, 2007, upon a verdict convicting defendant of the crimes of attemptedgang assault in the first degree, assault in the second degree, criminal use of a firearm in thesecond degree (two counts) and criminal possession of a weapon in the second degree.
Following an incident involving a fight between rival gang factions that ended with gunshotsfired by defendant, he was charged in an indictment with numerous crimes arising out of hisparticipation in the fight. The first three counts of the indictment charged defendant and his threecodefendants with attempted gang assault in the first degree and assault in the second degree(two counts); the remaining charges were made against defendant alone.[FN*]Following a jury trial, defendant was convicted of attempted gang assault in the first degree,assault in the second degree as charged in the third count of the indictment, criminal use of afirearm in the [*2]second degree (two counts), and criminalpossession of a weapon in the second degree. He was thereafter sentenced to an aggregate prisonterm of 12½ years, to be followed by five years of postrelease supervision. Defendantappeals, and we now affirm.
Initially, we reject defendant's argument that his convictions under the first, fourth and fifthcounts of the indictment—charging attempted gang assault in the first degree and twocounts of criminal use of a firearm in the second degree (see Penal Law §§110.00, 110.05 [4]; §§ 120.07, 265.08 [1], [2])—were not supported bylegally sufficient evidence. Attempted gang assault in the first degree is an element of criminaluse of a firearm in the second degree as charged herein; defendant asserts that this crime was notestablished inasmuch as the People failed to prove that he participated in the alleged assault orthat there was an attempt to cause serious physical injury to the victim, Francois Colden.Although there was testimony that it was difficult to identify anyone present because the crowdwas swarming and people's faces were obscured in the darkness, defendant concedes that therewas evidence that he was in the vicinity when Colden was assaulted. Moreover, two of thePeople's witnesses stated that while defendant's friends and fellow gang members were beatingand stabbing Colden, defendant—who was standing approximately 10 to 20 feetaway—fired a gun three times and was observed pointing the gun at a rival gang memberwho was attempting to assist Colden. In our view, given the testimony identifying defendant asthe shooter and the proximity of the shooting, a " 'valid line of reasoning and permissibleinferences . . . could lead a rational person' to convict" here (People v Santi, 3 NY3d 234, 246[2004], quoting People v Williams, 84 NY2d 925, 926 [1994]; see Matter of Marie K., 19 AD3d149, 150-151 [2005]; People vRivers, 17 AD3d 934, 935-936 [2005], lv denied 5 NY3d 768 [2005]; see also People v Ryan, 46 AD3d1125, 1127 [2007], lv denied 10 NY3d 939 [2008]).
Similarly lacking in merit is defendant's contention that his convictions of assault in thesecond degree and criminal possession of a weapon in the second degree are against the weightof the evidence. Inasmuch as a different verdict would not have been unreasonable, we "must,like the trier of fact below, 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony' " (People vBleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Romero, 7 NY3d 633, 643-644 [2006]). Weight ofthe evidence review, however, is not limited to a determination of credibility issues; rather, we"must [also] consider the elements of the crime, for even if the prosecution's witnesses werecredible their testimony must prove the elements of the crime beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,349 [2007]). Moreover, in conducting a weight of the evidence review, we are " 'constrained toweigh the evidence in light of the elements of the crime as charged without objection bydefendant' " (People v Cooper, 88 NY2d 1056, 1058 [1996] [emphasis added and citationomitted]; see People v Danielson, 9 NY3d at 349).
Here, County Court properly instructed the jury that in order to prove assault in the seconddegree, the People were required to establish that defendant, in the course of committing orattempting to commit a felony, caused physical injury to the victim, Kaiheim Hough (seePenal Law § 120.05 [6]). Physical injury is defined as an "impairment of physicalcondition or substantial pain" (Penal Law § 10.00 [9]). While " 'petty slaps, shoves, kicksand the like delivered out of hostility, meanness and similar motives' . . . do notinflict physical injury" (People vChiddick, 8 NY3d 445, 448 [2007] [citation omitted]), the Court of Appeals hasinstructed that "[p]ain need not . . . be severe or intense to be substantial" and, thus,constitute a physical injury (id. at 447). A variety of factors are relevant in determiningwhether physical [*3]injury has been established, including "theinjury viewed objectively, the victim's subjective description of the injury and [his or] her pain,and whether the victim sought medical treatment" (People v Rivera, 42 AD3d 587, 588 [2007], lv denied 9NY3d 880 [2007]; see People v Chiddick, 8 NY3d at 447).
A review of the record reveals that Hough immediately fled the scene to seek medicalattention once he was shot. At the hospital, Hough complained of pain and swelling in hisshoulder, and he was given a prescription for antibiotics, as well as an X ray, which indicatedthat a bullet was lodged in his upper arm. Although the injury was not life-threatening, the bulletcould not be removed without further complications. Furthermore, while Hough did not testifyregarding his pain at the time of the incident, he indicated that he experiences discomfort when itrains as a result of the bullet that remains in his arm. Under these circumstances, the jury'sfinding that Hough suffered a physical injury was not against the weight of the evidence (seePeople v Chiddick, 8 NY3d at 447-448; People v Rojas, 61 NY2d 726, 727-728[1984]; see also People v Horton, 9AD3d 503, 504-505 [2004], lv denied 3 NY3d 707 [2004]; cf. People v Baez, 13 AD3d 463,464 [2004], lv denied 4 NY3d 851 [2005]).
With respect to criminal possession of a weapon in the second degree, testimony at trialindicated that defendant fired a small handgun three times while in the middle of a crowd. Inaddition, one witness testified that defendant was pointing the gun straight at a rival gangmember, although he hit Hough instead. Evaluating the evidence in a neutral light and accordingdeference to the jury's opportunity to view the witnesses, hear their testimony and observe theirdemeanor (see People v Bleakley, 69 NY2d at 495), we cannot say that the jury actedimproperly in concluding that defendant possessed a loaded firearm with the intent of using itunlawfully against another (see Penal Law § 265.03; People v Vargas, 60 AD3d 1236,1238-1239 [2009]; People vClemmons, 46 AD3d 1117, 1118-1119 [2007], lv denied 10 NY3d 763 [2008];People v Collazo, 45 AD3d899, 900-901 [2007], lv denied 9 NY3d 1032 [2008]).
Finally, we are unpersuaded by defendant's argument that County Court erred in denying hisrequest for a missing witness charge with regard to Colden. Defendant failed to show either thatColden would testify favorably to the People or that he was available to the People (seePeople v Savinon, 100 NY2d 192, 197 [2003]; People v Lemke, 58 AD3d 1078,1079 [2009]; People v Hilliard, 49AD3d 910, 913 [2008], lv denied 10 NY3d 959 [2008]; People vCunningham, 301 AD2d 955, 956 [2003], lv denied 99 NY2d 653 [2003]). Nor dowe find merit in defendant's contention that County Court abused its discretion in limiting hiscross-examination of a witness regarding occasional marihuana use (see People vWrigglesworth, 204 AD2d 758, 758-759 [1994]; see also People v Love, 307 AD2d528, 532 [2003], lv denied 100 NY2d 643 [2003]).
Defendant's remaining arguments are either moot or were not preserved for our review.
Cardona, P.J., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Two of the codefendantsreached plea bargains with the People and agreed to testify truthfully regarding the incident inexchange for reduced sentences.