| People v Newland |
| 2011 NY Slip Op 02966 [83 AD3d 1202] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ronald A.Newland, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Christopher D. Grace of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered December 24, 2008, convicting defendant following a nonjury trial of the crimes ofassault in the second degree (two counts) and criminal possession of a weapon in the thirddegree.
In the early morning hours of November 25, 2007, defendant drove to 41 Colfax Avenue inthe City of Binghamton, Broome County to pick up his girlfriend, Charlene Burrell, who hadbeen out celebrating her sister's birthday. When defendant arrived, one of Burrell's brothers,Lindy Crea, confronted defendant regarding his treatment of her. Another of Burrell's brothers,Jonathan Crea, joined them outside the residence and a fight broke out between the Creas anddefendant, which Burrell's brother-in-law, Ivan Cruz, attempted to break up. At some point,defendant drew a knife and stabbed and slashed both of the Creas, who were unarmed. After aninjured Lindy went inside the residence, Jonathan again advanced on defendant. Cruz interceptedJonathan, at which time defendant reached around Cruz and stabbed Jonathan in the arm.Defendant then left the property, and the Creas thereafter went by ambulance to the hospital fortreatment. Defendant was arrested a short time later and, following a bench trial, convicted oftwo counts of assault in the second degree and one count of criminal possession of a weapon inthe third degree. He was sentenced, as a second felony offender, to an aggregate prison term offive years, with five years of postrelease supervision. Defendant appeals.[*2]
Initially, we find no abuse of discretion in County Court'sSandoval ruling (see People v Hayes, 97 NY2d 203, 207-208 [2002]; Peoplev Sandoval, 34 NY2d 371, 375-377 [1974]). The court allowed full inquiry into only three ofdefendant's nine convictions: criminal trespass in the second degree, aggravated unlicensedoperation of a motor vehicle in the third degree, and criminal possession of marihuana in the fifthdegree, all of which the court concluded manifested defendant's willingness to place his interestsabove those of the community. The court allowed limited inquiry into defendant's convictions forcriminal possession of a controlled substance in the seventh degree and unauthorized use of amotor vehicle in the third degree, and precluded all inquiry into four other convictions, reasoningthat the actual or perceived physical violence associated with those convictions might undulyprejudice defendant by suggesting a propensity for violent conduct. Under the circumstances ofthis case, the court's ruling represented an appropriate balancing of the probative value ofdefendant's prior convictions against the risk of unfair prejudice (see People v Sandoval,34 NY2d at 375; People v Grady, 40AD3d 1368, 1370 [2007], lv denied 9 NY3d 923 [2007]).
Nor are we persuaded by defendant's contention that the People violated Brady vMaryland (373 US 83 [1963]) by failing to turn over to him, until the week before trial, thecontents of a 911 call from a neighbor who witnessed the fight. Defendant has not demonstratedthat the material was exculpatory or impeaching in nature (see People v Fuentes, 12 NY3d 259, 263 [2009]) and, in any event,the prosecution turned the material over to defendant as soon as it was received (see People v Gragnano, 63 AD3d1437, 1443 [2009], lv denied 13 NY3d 939 [2010]). Thus, defendant was given "ameaningful opportunity to use the allegedly exculpatory material to cross-examine the People'switnesses or as evidence during his case" (People v Cortijo, 70 NY2d 868, 870 [1987];see People v Monroe, 17 AD3d863, 864 [2005]). It follows that defendant's further claim that the purported Bradyviolation rendered his earlier jury trial waiver involuntary is also without merit.
Defendant next challenges the weight and sufficiency of the evidence.[FN*]In our view, however, the People established beyond a reasonable doubt that when defendantwielded his knife, he intended to use it against, or cause physical injury to, another person(see Penal Law § 265.02 [1]; § 265.01 [2]; § 120.05 [2]). Intent tocause injury can be inferred from the circumstances (see People v Ozarowski, 38 NY2d481, 491 [1976]; People vGonzalez, 64 AD3d 1038, 1041 [2009], lv denied 13 NY3d 796 [2009]; People v Zindle, 48 AD3d 971,973 [2008], lv denied 10 NY3d 846 [2008]). Here, although defendant testified that hemeant to use the knife only to scare off the other men, the number and type of injuries inflictedupon the victims, which include slashes to both of the Creas' necks and torsos, as well as a deepstab wound to Jonathan's shoulder, coupled with the testimony of other witnesses, establishdefendant's intent to harm the Creas.[*3]
Defendant also contends that his actions were justified todefend himself against what he reasonably believed to be deadly physical force by the Creas andby Cruz, who he believed to be cooperating with the Creas at the time of the incident (seePenal Law § 35.15 [1], [2] [a]). It is uncontroverted, however, that neither the Creas norCruz were armed, and there was evidence that defendant sustained only minor injuries. Indeed,eyewitnesses testified that the fight between defendant and the Creas was in the nature of awrestling match. From this evidence, the factfinder could have concluded that defendant did notreasonably believe that the Creas and Cruz were using or about to use deadly physical forceagainst him (compare People v Bloomer, 208 AD2d 1119, 1120 [1994], lv denied85 NY2d 906 [1995], and People v Longo, 182 AD2d 1019, 1021 [1992], lvdenied 80 NY2d 906 [1992], withPeople v Jones, 59 AD3d 864, 867 [2009]). Additionally, several witnesses testified thatthe fight periodically abated such that defendant could have retreated to his car, which wasparked at the curb with the engine running. The ability to safely retreat will negate thejustification defense (see Penal Law § 35.15 [2] [a]; People v Russell, 91NY2d 280, 290 [1998]). Considering all of the evidence in a neutral light and according duedeference "to the fact-finder's opportunity to view the witnesses, hear the testimony and observedemeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]; accord People v Race, 78 AD3d1217, 1219 [2010]), we find that the verdict was not against the weight of the evidence.
Nor are we persuaded by defendant's further arguments for reversal. His failure to move todismiss the indictment on statutory speedy trial grounds (see CPL 30.30) effectivelywaived that claim (see CPL 210.20 [2]; People v Lawrence, 64 NY2d 200, 203[1984]). His claim of prosecutorial misconduct is not supported by the record (see People v Williamson, 77 AD3d1183, 1185 [2010]; People v Dickson, 58 AD3d 1016, 1018 [2009], lvdenied 12 NY3d 852 [2009]). Moreover, he received meaningful representation; his counsel,among other things, pursued a reasonable defense, presented cogent opening and closingarguments, effectively cross-examined witnesses, made appropriate objections and secured anacquittal on the two top counts of the indictment (see People v Williamson, 77 AD3d at1185). And finally, his sentence is not unduly harsh given the victims' injuries and his ownextensive criminal history (see People vAdams, 51 AD3d 1136 [2008], lv denied 11 NY3d 784 [2008]).
Defendant's remaining contentions are unpreserved and do not warrant reversal in the interestof justice.
Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant failed to renew hismotion to dismiss for lack of legally sufficient evidence at the close of his proof, rendering thatissue unpreserved for appellate review. However, since he also argues weight of the evidence,which need not be preserved, we will consider the evidence as to the challenged elements of eachcrime in that context (see People vRace, 78 AD3d 1217, 1219 [2010]; People v Gonzalez, 64 AD3d 1038, 1039-1040 [2009], lvdenied 13 NY3d 796 [2009]).