| People v Andrews |
| 2010 NY Slip Op 07830 [78 AD3d 1229] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rex Andrews Jr.,Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.), renderedJune 23, 2009, upon a verdict convicting defendant of the crimes of attempted assault in the firstdegree, criminal possession of a weapon in the third degree and assault in the third degree.
Defendant was indicted on four counts following an altercation that occurred in September 2008on the victim's property in the City of Elmira, Chemung County. The victim, who had previously noticedthat a garage door upon his property had been tampered with and items had been stored inside, founddefendant in the garage. After an initial verbal confrontation, defendant allegedly attacked the victimwith a hammer,[FN1]they struggled, and the victim suffered a broken ankle. Defendant fled and was apprehended nearbyminutes later.
After a jury trial, defendant was acquitted of attempted murder in the second degree, but convictedof attempted assault in the first degree, assault in the third degree as a lesser included offense of assaultin the second degree, and criminal possession of a weapon in the third degree. Before sentencing,defendant's challenge to his status as a second violent felony offender was rejected.[FN2]County Court (Hayden, J.) thereafter sentenced defendant as a second violent felony offender to anaggregate prison term of 15 years and five years of postrelease supervision. Defendant appeals.
Defendant failed to preserve his challenges to the legal sufficiency of his convictions by renewing hisunsuccessful motion to dismiss the charges at the close of all proof, after presenting evidence (see People v Lane, 7 NY3d 888, 889[2006]; People v Vargas, 72 AD3d1114, 1116 [2010], lv denied 15 NY3d 758 [2010]). However, defendant alsochallenges the weight of the evidence supporting his convictions (see People v Bleakley, 69NY2d 490, 495 [1987]), and our review in that regard necessarily includes the sufficiency of theevidence as to the elements of the charged crimes (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Morrison, 71 AD3d 1228,1229 [2010], lv denied 15 NY3d 754 [2010]; People v Vargas, 72 AD3d at 1116).
First, with regard to the conviction for attempted assault in the first degree, we are unpersuaded bydefendant's contention that the evidence did not demonstrate that he intended to cause serious physicalinjury or that he came dangerously close to doing so (see Penal Law §§ 110.00,120.10 [1]). The victim testified that defendant warned that he should not have dialed 911, and statedthat he had "something for [the victim]" before taking the hammer out of his backpack. According to thevictim, defendant repeatedly swung the hammer at his head in violent, vertical strokes that the victimwas able to avoid only by deflecting the blows with a broomstick. The victim's 13-year-old son waspresent and corroborated this account. Thus, despite defendant's testimony that the hammer merely fellfrom his backpack and that he did not strike or try to strike the victim with it, there was ample evidencefrom which the jury could justifiably conclude that he came "dangerously near" to causing seriousphysical injury to the victim (People vBonney, 69 AD3d 1116, 1117 [2010], lv denied 14 NY3d 838 [2010] [internalquotation marks omitted]). Moreover, defendant's intent to cause such injury was readily inferred fromthe surrounding circumstances and his conduct and statements (see People v Malcolm, 74 AD3d 1483, 1485 [2010]; People v Carter, 74 AD3d 1375, 1377[2010], lv denied 15 NY3d 772 [2010]).
With regard to his conviction for assault in the third degree, defendant contends that there was noevidence that the hammer blows to the victim's head caused "impairment of physical condition orsubstantial pain" (Penal Law § 10.00 [9]) or that he intended to fracture the victim's ankle.However, the weight of the credible evidence establishes that the fracture occurred when the victim fellwhile attempting to repel defendant's hammer attack. Thus, the fracture was a direct result ofdefendant's conduct, and the jury justifiably concluded that defendant caused physical injury with theintent to do so (see Penal Law § 120.00 [1]). Finally, the weight of the credibleevidence demonstrates that defendant possessed a dangerous instrument with the intent to use itunlawfully against the victim and therefore supports his conviction for criminal possession of a weaponin the third degree (see Penal Law § 10.00 [13]; § 265.01 [2]; § 265.02[1]; People v Sullivan, 300 AD2d 689, 691 [2002], lv denied 100 NY2d 587[2003]).[*2]
Next, defendant contends that he received ineffectiveassistance of counsel because his attorney did not request a justification charge. However, when such acharge is unwarranted by the facts, the failure to request it does not constitute ineffective assistance (see People v Peele, 73 AD3d 1219,1222 [2010]). Here, no reasonable view of the evidence supported a justification charge (seePeople v Cox, 92 NY2d 1002, 1004 [1998]; People v Ham, 67 AD3d 1038, 1039 [2009]). Even if, as defendantinsisted, he was not the initial aggressor, there was no evidence that the victim used or attempted to use"unlawful" force (Penal Law § 35.15 [1]; see Penal Law § 35.20 [2]; §35.30 [4]). A justification defense would not have permitted defendant to use more force than hereasonably believed necessary to defend himself (see Penal Law § 35.15 [1]; People v Brunson, 68 AD3d 1551,1553-1554 [2009], lv denied 15 NY3d 748 [2010]), and nothing in defendant's account ofevents suggested that he could reasonably have believed it was necessary to strike the victim in thehead with a hammer. Finally, since defendant's primary defense consisted of his claim that he did notwield the hammer at all, his counsel may have concluded for strategic reasons that a claim that he wasjustified in doing so would have compromised his principal defense strategy (see People v Valdez, 69 AD3d 452,453 [2010], lv denied 14 NY3d 893 [2010]).
Defendant further claims that his counsel provided ineffective assistance by failing to request acompetency hearing pursuant to CPL article 730 or to object to a psychiatrist's report that found himcompetent to stand trial in spite of certain delusional beliefs and a history of mental illness.[FN3]We disagree. A competency hearing is not required simply because a defendant has a history of mentalillness (see People v Lafoe, 75 AD3d663, 663 [2010]) or suffers from delusional thoughts or beliefs (see People v Tortorici, 92NY2d 757, 768-769 [1999], cert denied 528 US 834 [1999]; People v Dewey, 18 AD3d 894, 895[2005]). Defendants are presumed to be competent, and a hearing is required only when there are"reasonable grounds to believe that, because of mental disease or defect, the defendant is incapable ofassisting in his . . . own defense or of understanding the proceedings against him"(People v Planty, 238 AD2d 806, 807 [1997], lv denied 89 NY2d 1098 [1997];see People v Davenport, 58 AD3d 892, 894 [2009], lv denied 12 NY3d 782[2009]). Here, the record indicates that although defendant did hold certain delusionalideas—for example, the belief that he owned the victim's garage—he fully understood theallegations against him and was able to make strategic decisions with his attorney and interactcoherently with County Court during the proceedings (see People v Majors, 73 AD3d 1382, 1383 [2010], lv denied15 NY3d 775 [2010]). Moreover, when defendant's counsel broached the question of his competencybefore trial, the court noted that defendant exhibited no confusion about the proceedings and found nobasis to order a competency examination. Under such circumstances, his counsel did not fail to providehim with "meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]) by decliningto further pursue the competency issue (see People v Dupont, 268 AD2d 612, 614 [2000],lv denied 95 NY2d 834 [2000]).
We disagree with defendant's contention that County Court (Buckley, J.) erred in finding him to bea second violent felony offender based on his 1995 conviction for assault in the second degree resultingfrom an Alford plea. As the existence of this conviction was undisputed, it was defendant'sburden to establish that the conviction was obtained unconstitutionally (see People v Konstantinides, 14 NY3d1, 15 [2009]; People v Pelkey, 63AD3d 1188, 1190 [2009], lv denied 13 NY3d 748 [2009]). The 1995 transcript revealsthat during a standard plea colloquy [*3]the trial court engaged in athorough examination to ensure that defendant understood the rights he was forfeiting. That court madeclear efforts to ascertain that defendant's cognitive deficits did not interfere with his full understandingand, when defendant did not admit a material element of the crime, refused to accept the plea. After abreak, during which defendant consulted with his attorney and counsel met with the court, theproceeding reconvened for the entry of an Alford plea. Such a plea is properly accepted whenit is "the product of a voluntary and rational choice, and the record before the court contains strongevidence of actual guilt" (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000]; see People v Amir, 70 AD3d 1122,1122-1123 [2010], lv denied 14 NY3d 885 [2010]). Here, the court's interchange withdefendant fully revealed the voluntary and rational nature of his decision, including his specificacknowledgment that he understood that his plea would expose him to future sentence enhancements.In addition to the court's questions, the People placed on the record their strong evidence ofdefendant's guilt, and defendant's counsel affirmed that he had fully explained to defendant the nature ofthe plea and the rights he would forfeit, including a potential justification defense. Thus, the courtproperly determined that the predicate conviction was constitutionally obtained (see People v Matthie, 34 AD3d 987,989 [2006], lvs denied 8 NY3d 805, 847 [2007]; People v Stewart, 307 AD2d 533,534 [2003]).
Finally, defendant contends that his sentence is harsh and excessive. In view of defendant's priorhistory of violent crimes and his apparent unresponsiveness to numerous previous incarcerations, we donot find that County Court abused its discretion in imposing the maximum sentence (see PenalLaw § 70.04 [3] [b]; People vStearns, 72 AD3d 1214, 1219 [2010], lv denied 15 NY3d 778 [2010]; People vVargas, 72 AD3d at 1120).
Mercure, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The tool, described in the record asa carpenter's hammer, combined a hammerhead and an axe blade.
Footnote 2: Upon defendant's motion, JudgeHayden recused himself from determining defendant's predicate offender status, so this issue was heardand decided by Judge Buckley.
Footnote 3: An evaluation had been ordered byCity Court in the course of preliminary proceedings, before indictment.