| People v Stewart |
| 2009 NY Slip Op 09551 [68 AD3d 1438] |
| December 24, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Hasan Stewart, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered February 26, 2008, upon a verdict convicting defendant of the crimes of attemptedmurder in the second degree, assault in the first degree and aggravated unlicensed operation of amotor vehicle in the second degree.
While the victim, his friend and defendant were standing in line at a gas station, a pettyargument arose. Rather than let it go, defendant drove his car into the victim, knocking him tothe ground. Defendant then backed up and accelerated his car so the front tires drove over thevictim. The victim was wedged underneath the car as defendant spun and smoked the tires,finally propelling the back tires over the victim. Defendant then drove away, leaving the victimlying in the parking lot with scrapes and burns over a large portion of his body, his hand nearlyamputated and hanging by little more than a flap of skin.
Following a trial, the jury found defendant guilty of attempted murder in the second degree,assault in the first degree and aggravated unlicensed operation of a motor vehicle in the seconddegree. County Court sentenced him to an aggregate term of 25 years in prison with five years ofpostrelease supervision. Defendant appeals.
The verdict was supported by legally sufficient evidence and is not against the weight of theevidence. For the attempted murder and assault charges, the testimony of the victim, his friendand two clerks from the gas station described defendant's actions in hitting the victim with hiscar, then backing up only to accelerate and run over him. A doctor testified concerning thevictim's injuries, including the near amputation of his hand, the resulting blood loss and thepermanent loss of normal use and function of the hand. Defendant's intent can be inferred fromthe quarrel he had with the victim and his friend immediately prior to getting into his car, alongwith his actions in backing up and then accelerating over the victim after he was already on theground (see People v Hartman, 64 AD3d 1002, 1003 [2009]; People v Nash, 64AD3d 878, 881 [2009]; People v Mullings, 23 AD3d 756, 758 [2005], lv denied6 NY3d 756 [2005]). This evidence was legally sufficient to establish defendant's guilt ofattempted murder in the second degree and assault in the first degree.
For the aggravated unlicensed operation charge, testimony and records from the Departmentof Motor Vehicles (hereinafter DMV) showed that defendant never possessed a driver's licenseand his privileges to operate a motor vehicle had been suspended and revoked on numerousoccasions and never restored. Testimony of numerous witnesses and defendant's statement topolice proved that he was driving. Thus, the evidence was legally sufficient to support thatcharge as well. The testimony of defendant and his girlfriend that they were fleeing from anattack by the victim and his friend, causing defendant to accidentally run over the victim,presented a credibility question that the jury resolved in favor of the People. Viewing theevidence in a neutral light and giving deference to the jury's credibility determinations, theverdict was not against the weight of the evidence (see People v Gonzalez, 64 AD3d1038, 1041-1042 [2009], lv denied 13 NY3d 796 [2009]; People v Levy, 52AD3d 1025, 1027 [2008]).
Defendant failed to preserve for appellate review his alleged deprivation of the right tocounsel, as he did not object to County Court's limitation on communication with counsel duringan overnight recess while defendant was in the midst of testifying (see People v Umali,10 NY3d 417, 423 [2008], cert denied 556 US —, 129 S Ct 1595 [2009];People v Narayan, 54 NY2d 106, 112-113 [1981]). We decline to exercise our interest ofjustice jurisdiction to take corrective action with regard to this unpreserved issue. Counsel'sfailure to object did not render his assistance inadequate. Defendant failed to show any prejudice,as there is no indication that counsel intended to speak to defendant about his testimony on theevening in question (see People v Riddick, 307 AD2d 821, 821 [2003], lv denied1 NY3d 541 [2003]).
Also unpreserved is defendant's contention that County Court violated his rights under theConfrontation Clause by admitting into evidence a purported certified copy of his drivingabstract and an affidavit of regularity/proof of mailing from DMV. Defendant did not object tothe admission of those documents into evidence (see People v Kello, 96 NY2d 740,743-744 [2001]; compare People v Pacer, 6 NY3d 504, 509 [2006]). Defendant also didnot object to the testimony of a DMV employee which provided information regarding DMV'sprocedures and a foundation for the admission of the driving abstract (see People vPotter, 30 AD3d 313, 315 [2006], lv denied 7 NY3d 816 [2006]). The drivingabstract was admissible as a business record, thus that document did not implicate theConfrontation Clause (see CPLR 4518 [a]; People v Maldonado, 44 AD3d 793,794 [2007], lv denied 9 NY3d 1035 [2008]; People v Carney, 41 AD3d 1239,1239-1240 [2007], lv denied 9 NY3d 873 [2007]). In any event, counsel's failure toobject to admission of these documents did not constitute ineffective assistance, as counselpursued a reasonable strategy focused on defending the felony charges rather than squabblingover the admission of documents concerning only the misdemeanor charge (see People vRyan, 46 AD3d 1125, 1126-1127 [2007], lv denied 10 NY3d 939 [2008]; cf.People v Rivera, 71 NY2d 705, 709 [1988]).[FN*]
Defendant did not preserve his argument that the People committed a Rosarioviolation (see People v Rogelio, 79 NY2d 843, 844 [1992]), nor has he shown that such aviolation was committed.
Considering defendant's callous disregard for the victim's life, criminal history (including 12convictions in New York and convictions in two other states), lack of remorse and refusal toaccept responsibility for his actions, County Court's sentence was not unduly harsh or excessive(see People v Rollins, 51 AD3d 1279, 1282-1283 [2008], lv denied 11 NY3d 922[2009]).
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant argues that counselwas ineffective due to his failure to properly investigate and prepare for trial. As this contentionis based upon information outside the record, it cannot be addressed on appeal and is moreproperly addressed through a CPL article 440 motion.