| People v Gragnano |
| 2009 NY Slip Op 05210 [63 AD3d 1437] |
| June 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MatthewGragnano, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Asha Thomas of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.),rendered April 12, 2007, upon a verdict convicting defendant of the crimes of assault in thesecond degree, criminal possession of a weapon in the third degree, criminal contempt in the firstdegree, criminal mischief in the fourth degree, resisting arrest and criminal contempt in thesecond degree.
After a jury trial, defendant was convicted of assault in the second degree, criminalpossession of a weapon in the third degree, criminal contempt in the first degree and othercrimes resulting from an incident in a bar in the City of Troy, Rensselaer County, in the earlymorning hours of March 31, 2006. It was undisputed that defendant's girlfriend arrived at the bar,yelling at defendant about him taking her keys. An argument erupted, during which anotherpatron, Zachary Butler, sustained a cut to his left arm while attempting to intervene in the heateddispute between defendant and his girlfriend, for whom a stay-away order of protection againstdefendant had recently been issued. Defendant was expelled from the bar, which was thenlocked. After banging on the doors to the bar, defendant punched the front window, breaking it,for which he was convicted of criminal mischief. Defendant then went to the girlfriend's home,where he was arrested after a struggle with police, leading to the convictions for resisting arrestand criminal contempt in the second degree. Sentenced to an aggregate prison term of sevenyears, defendant [*2]appeals.
Initially, defendant's challenge to County Court conducting a bifurcated Wadehearing lacks merit. At the People's request, the court first heard testimony addressing theprocedures employed in three consecutive photo arrays shown to Butler, and it ruled that theywere unduly suggestive. The court then permitted the People to call Butler as a witness to testifyregarding his observations of defendant during the incident, after which the court determined thathe had an independent source for an in-court identification of defendant. While prosecutors havebeen advised—for appellate review purposes—"to come forward with anyindependent source evidence at a Wade hearing so that the suppression court may, whereappropriate, rule in the alternative" (People v Wilson, 5 NY3d 778, 780 [2005]), "the People have noburden to come forward with independent source evidence in every case absent a showing that apretrial identification procedure is impermissibly suggestive" (People v Burts, 78 NY2d20, 24 [1991]). Thus, the bifurcated approach was permissible.
We are also unpersuaded by defendant's challenges to the legal sufficiency and weight of theevidence, which focus on the fact that the weapon used to cut Butler was not observed by any ofthe witnesses or recovered by police when they responded to the scene. The defense theory attrial was that Butler cut his arm during the struggle on a jagged edge of the metal strip located onthe bar's footrest. Initially, assault in the second degree required proof that defendantintentionally caused physical injury to Butler by means of a deadly weapon or dangerousinstrument (see Penal Law § 120.05 [2]). Defendant's challenge to the sufficiencyof the proof that Butler sustained a physical injury was not properly preserved by a specificmotion (see People v Gray, 86 NY2d 10, 19 [1995]) and, in any event, the testimony ofButler and the medical examiner, a forensic pathologist, established that he sustained a verypainful 29-centimeter cut which required 35 stitches. Thus, the People established that Butlersuffered the requisite injury to sustain the assault conviction (see People v Amato, 1 AD3d 713, 715 [2003], lv denied 1NY3d 594 [2004]; People v Shannon, 273 AD2d 505, 506-507 [2000], lv denied95 NY2d 892 [2000]; see also Penal Law § 10.00 [9]).
With regard to the adequacy of the proof that defendant inflicted this injury by means of adeadly weapon or dangerous instrument (see Penal Law § 10.00 [12], [13]), anissue that was preserved by defense counsel's motions for a trial order of dismissal, we find thatthe evidence adduced at trial sufficiently established this element of the assault and criminalpossession counts notwithstanding the fact that the witnesses never saw the weapon and policewere not able to recover it (see People v Wade, 274 AD2d 438, 439 [2000], lvdenied 95 NY2d 939 [2000]). Butler testified that as he held defendant back from thegirlfriend with his left hand and looked away, defendant cut his left arm with an unseen object,and then defendant—looking directly at Butler—immediately stated, "I madeSuperman[FN1]bleed. I cut ya." and "Where's my blade?" Butler further testified that Raymond Bronk, a partowner of the bar, responded that he had "kicked it out the door." The medical examiner testifiedthat Butler's cut was "very linear" and "very thin" and that it was consistent with a "sharp edgedweapon or tool," such as a razor blade. He opined that the cut was "not a jagged, tearing wound"or consistent with a wound that would be caused by falling onto a jagged piece of metal, as thedefense posited. Viewing the evidence most favorably to the prosecution, we find that the Peoplesufficiently proved defendant's possession of a dangerous instrument or deadly weapon andintentional conduct using that [*3]weapon to cause injury toButler (see People v Bleakley, 69 NY2d 490, 494-495 [1987]; People v Abera, 2 AD3d 1155,1156 [2003], lv denied 1 NY3d 624 [2004]; People v Wade, 274 AD2d at 439).
Turning to defendant's claim that the convictions are contrary to the weight of the evidencebecause Butler's testimony was either contradicted or not supported by that of the othereyewitnesses, we are unpersuaded. While a different finding—on the assault and criminalpossession convictions—would not have been unreasonable, upon weighing "the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony" (People ex rel. MacCracken v Miller, 291 NY 55, 62[1943]), we do not conclude that "the trier of fact has failed to give the evidence the weight itshould be accorded" (People v Bleakley, 69 NY2d at 495; see People v Danielson, 9 NY3d342, 348-349 [2007]; People vRomero, 7 NY3d 633, 643-644 [2006]). Defendant and defense witnesses testified,essentially, that Butler unnecessarily and aggressively intervened in a purely verbalconfrontation between defendant and his girlfriend and, when Butler held defendant in a bearhug from behind, the bartender (Christine Roberts) attempted to separate defendant and Butler;during the struggle, defendant, Butler and Roberts all fell to the floor, at which point Butler musthave cut his arm on a protruding jagged piece of metal on the footrest, as depicted in picturestaken subsequent to the incident that were introduced by the defense at trial. Defendant deniedcutting Butler, possessing a knife or sharp-edged weapon or making the statements attributed tohim; none of the defense witnesses saw a weapon or overheard defendant's remarks as recountedby Butler.
However, as the jury verdict implicitly reflects, the defense witnesses were neither unbiasednor particularly credible. The girlfriend, who had an infant with and was partially supported bydefendant, admitted she still loved him and there was evidence that she continued to have contactwith him despite the order of protection. Roberts, the bartender, was a personal friend ofdefendant and the girlfriend and, until months before the incident, had a long-term live-inrelationship with defendant's brother; she signed a written statement in which she lied to policeafter the incident when she claimed, among other things, that an unknown white male was theperpetrator in an effort to protect defendant. Bronk, the part owner who denied kicking a weaponout the door after Butler was cut, was admittedly intoxicated that night and had known defendantfor 25 years.
In our view, the defense witnesses' supposition that Butler was cut on a piece of metal nearthe floor was a speculative theory, first suggested to police more than a month afterward, whichwas contrary to the physical evidence—e.g., the blood markings on the floor and theparties' clothing, and the medical testimony—and was not especially believable. Further,the police officer who examined and photographed the scene immediately after the incident didnot see the metal protrusion, which is not observable in his photographs. The officer testified thatthe defense photographs—which were taken on an unknown subsequent date—didnot accurately reflect the condition of the footrest on the date of the incident and that it appearedas if the metal piece had since been "pried out." The few inconsistencies or shortcomings inButler's testimony were fully explored at trial and were not of the type that rendered himunworthy of belief. According great deference to its first-hand opportunity to assess thecredibility, observations, and motives of all of the witnesses, we do not find that the jury failed togive the evidence the weight it deserved (see People v Bleakley, 69 NY2d at 495; People v Casey, 61 AD3d 1011,1013-1014 [2009]).[*4]
Defendant's challenge to the legal sufficiency of theevidence supporting his conviction of criminal contempt in the first degree is unpreserved and,further, lacks merit. Butler's testimony constituted sufficient proof that, in violation of a knownorder of protection, defendant subjected his girlfriend to "physical contact"—striking herin the head—and did so "with intent to harass, annoy, threaten or alarm" her (Penal Law§ 215.51 [b] [v]; see People vGorham, 17 AD3d 858, 859 [2005]). While defendant and the girlfriend denied that hestruck her and none of the other witnesses admitted seeing him do so, Bronk testified to seeingdefendant pin her against a wall, holding her hands over her head so she could not get awayduring their altercation. The jury, by its verdict, credited Butler's testimony while rejecting thedefense witness denials, and rationally inferred defendant's intent from his violent conduct, andwe see no reason to disturb that verdict (see People v Bleakley, 69 NY2d at 495; People v Soler, 52 AD3d 938, 940[2008], lv denied 11 NY3d 741 [2008]; People v Roman, 13 AD3d 1115, 1115-1116 [2004], lvdenied 4 NY3d 802 [2005]; Peoplev Durant, 6 AD3d 938, 940-941 [2004], lv denied 3 NY3d 639 [2004];People v Collins, 178 AD2d 789, 789-790 [1991]).
Next, defendant contends that County Court erred in permitting the People—whopresented no medical testimony or evidence in their direct case—to call the medicalexaminer to testify in rebuttal, based upon his review of Butler's medical records, to offer hisopinion of the cause of Butler's cut, and that the refusal to grant even a one-day adjournment topermit defense counsel to prepare for this witness was reversible error. Although defendantspecifically requested—in his demand for discovery and request for a bill ofparticulars—Butler's medical records, the People indicated in their response that they didnot have them and, at trial, affirmed that they had no intention to introduce the medical recordsor related testimony. Defense counsel's motion at trial to preclude proof as to Butler's injurieswas denied. When defense counsel specifically requested production of Butler's medical recordsas Brady material prior to Butler's testimony, the prosecutor stated that he had neversubpoenaed them. After the defense presented its case—tendering the theory that Butler'sinjury was attributable to jagged metal on the footrest rather than to a weapon used bydefendant—the People were granted permission, over defense counsel's strenuousobjection, to call Butler's treating physician in rebuttal; Butler's medical records, subpoenaed thatday, were then turned over to defense counsel. The next morning, the prosecutor indicated thathe had been unable to make contact with the treating physician and was permitted, over defensecounsel's objection that he was not prepared to cross-examine this surprise witness, to call themedical examiner to testify regarding the nature and cause of Butler's injury. The medicalexaminer then testified from his review, the night prior, of the medical records. Defense counselwas granted one hour following that direct testimony in which to prepare for cross-examination;his request for an adjournment—to consult a medical expert to review the medical recordsreceived the night before—was otherwise denied.
The People could, and arguably should, have presented medical proof in their direct caseregarding the cause of Butler's injury given their burden to prove the elements of assault in thesecond degree and their awareness that the defense had an alternate theory[FN2]as to the cause of Butler's cut. However, we cannot say under these circumstances that it was anabuse of [*5]discretion to permit medical testimony in rebuttal torefute the defense witnesses' assertions as to the cause of Butler's injury (see CPL 260.30[7]; People v Harris, 98 NY2d 452, 489 [2002]), as "evidence [may be] properly receivedin rebuttal even if it could have been offered on direct" (People v Harris, 57 NY2d 335,345 [1982], cert denied 460 US 1047 [1983]).
We also find that, since Butler's medical records were not in the possession of the Peopleuntil the day the defense rested—at which time they were promptly given to defensecounsel—there was no Brady violation (see People v Vilardi, 76 NY2d 67,73 [1990]; People v Darling, 276 AD2d 922, 923-924 [2000], lv denied 96 NY2d733 [2001]; see generally Brady v Maryland, 373 US 83 [1963]). However, while thedecision whether to grant an adjournment is generally committed to the trial court's discretion(see People v Spears, 64 NY2d 698, 699-700 [1984]), where the protection of afundamental right is implicated, the court's discretionary power is more narrowly construed(see id. at 700).
Here, while the more prudent course in such circumstances would have been to grant alonger adjournment, we also consider the fact that the defense could have consulted a medicalexpert prior to trial for advice, using the photograph of Butler's injury, to be on stand-by totestify—if necessary—regarding the characteristics of a cut attributable to arazor-like weapon versus a piece of jagged metal. The defense also could have—earlyon—requested County Court's assistance in procuring Butler's medical records, redactedas necessary, for a defense medical expert's review (see e.g. People v Darling, 276 AD2dat 923). Given the foregoing, we cannot say that the refusal to grant a further adjournment roseto the level of an abuse of discretion or operated to deprive defendant of a fair trial. In view ofthe overwhelming evidence of defendant's guilt, any error was harmless beyond a reasonabledoubt (see People v Johnson, 1NY3d 302, 308 and n 5 [2003]; People v Crimmins, 36 NY2d 230, 237 [1975]).
We have examined defendant's remaining contentions, including those directed at theprosecutor's summation and at the claimed severity of the sentence imposed, and are notpersuaded. His challenge to the restitution order is not preserved for our review (see People vCasey, 61 AD3d at 1014).
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgmentis affirmed.
Footnote 1: Butler was wearing a T-shirtwith a Superman logo.
Footnote 2: Notably, Roberts' pretrialstatement, given to the police five weeks after the incident, indicated her belief that Butler wasinjured on a jagged piece of metal during the struggle, and the defense's opening statementclearly indicated it would present an alternate theory.