| People v Dancy |
| 2011 NY Slip Op 06149 [87 AD3d 759] |
| August 4, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MelvilleDancy, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Chemung County (Buckley,J.), rendered December 22, 2008, upon a verdict convicting defendant of the crime of assault inthe second degree.
In March 2007, while incarcerated at a correctional facility, defendant engaged in a physicalaltercation involving several correction officers as a result of which two of the correction officerssustained physical injuries. As a result, defendant was charged in an indictment with three countsof assault in the second degree. Following a jury trial, defendant was convicted of the countalleging that, with the intent to prevent Correction Officer Joseph Christofaro from performing alawful duty, defendant caused him physical injury (see Penal Law § 120.05 [3]).Defendant was acquitted of the remaining counts alleging that, with the intent to cause physicalinjury, he caused said injury to Christofaro and another correction officer, Robert Bennett(see Penal Law § 120.05 [7]). Defendant was sentenced as a second violent felonyoffender to five years in prison with five years of postrelease supervision. This sentence was torun consecutive to defendant's underlying prison term. He now appeals.
Defendant initially contends that the evidence was legally insufficient to support the verdict.Although defendant did appropriately move to dismiss on that basis with sufficient [*2]specificity at the close of the People's case, he did not renew thatmotion following the presentation of his own case. Accordingly, this challenge is not preservedfor our review (see People v Lane, 7NY3d 888, 889 [2006]). This circumstance is of little import, however, inasmuch asdefendant also claims that the verdict is against the weight of the evidence, which necessitates anevaluation by this Court as to whether the elements of the crimes charged were sufficientlyproven at trial (see People v Phelan,82 AD3d 1279, 1281 n [2011]). In conducting that review here, inasmuch as it would nothave been unreasonable for the jury to have reached a different verdict, this Court "must, like thetrier of fact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]; see People v Tafari, 68 AD3d 1540, 1541 [2009]).
As relevant herein, assault in the second degree requires proof that defendant, "[w]ith intentto prevent a peace officer . . . from performing a lawful duty, . . .cause[d] physical injury to such peace officer" (Penal Law § 120.05 [3]). At trial, Bennetttestified that, while on duty on the date of the incident, he noticed that defendant was "hangingback" from the other inmates entering the mess hall for lunch. Bennett asked defendant for hisidentification card and, when defendant did not produce it, he told defendant to place his handson the wall for a pat frisk. Bennett testified that, as he began the frisk, defendant spun around andpunched him in the face, knocking him to the ground. Christofaro testified that he observeddefendant punch Bennett and hurried over to help. In attempting to subdue defendant, Christofarotook him to the floor, where defendant continued to fight and lash out. Christofaro stated that, asa result of the altercation, he sustained an injury to his knee which subsequently required surgery,suffered a broken toe and experienced "a lot of pain" in his ribs, which he had initially thoughtwere broken. In contrast, defendant and his witnesses testified that it was Bennett who instigateda series of verbal disputes with defendant prior to the altercation and it was Bennett who attackedfirst. Defendant stated that he only used force against Bennett to defend himself and ajustification instruction was duly charged to the jury.
Contrary to defendant's argument, we are satisfied that his conviction for assault in thesecond degree was not against the weight of the evidence. Significantly, defendant did not testifythat Christofaro was involved in the alleged disputes involving Bennett. Thus, even acceptingthat the jury found that defendant was either justified in using force against Bennett or did notintend to injure him, this does not in any way take away from the proof establishing thatdefendant intended to prevent Christofaro from performing his lawful duty, i.e., subduingdefendant and quelling the disturbance, and caused Christofaro physical injury as a result(see Penal Law § 10.00 [9]). "Viewing the evidence in a neutral light andaccording deference to the jury's credibility determinations, it cannot be said that the trier of facthas failed to give the evidence the weight that it should be accorded" (People v Nisselbeck, 85 AD3d1206, 1208 [2011] [internal quotation marks and citations omitted]).
Next, defendant contends that he was deprived of a fair trial when County Court sustained anobjection preventing him from cross-examining Christofaro with respect to inconsistenttestimony he had given at defendant's tier III disciplinary hearing. Specifically, Christofaro hadstated at that hearing that his ribs were broken as a result of the altercation, which conflicted withhis trial testimony that the X rays of his ribs did not show a fracture. Although County Courtsustained the prosecutor's objection to that line of questioning, the People now concede that thisrestriction was error, albeit a harmless one. Upon review of the record, we conclude that this wasnot reversible error and defendant was not deprived of a fair [*3]trial. Notably, in the course of cross-examination, Christofaro hadalready been confronted with a prior inconsistent statement he had made to the grand juryregarding the extent of his rib injury.[FN*] Given that the jury was thus made aware of Christofaro's prior inconsistency, both in the courseof cross-examination and in defendant's summation, any error was harmless (see People vSaunders, 174 AD2d 365, 366 [1991], lv denied 78 NY2d 1014 [1991]; see alsoPeople v Williams, 302 AD2d 412 [2003], lv denied 100 NY2d 589 [2003]; compare People v Daley, 9 AD3d601, 602-603 [2004]).
Even if properly preserved for our review, we would find defendant's contention that the juryverdict was inconsistent and/or repugnant to be without merit (see People v Vazquez, 82 AD3d1273, 1275-1276 [2011]). Finally, we have examined defendant's remaining claims and findthem to be unpersuasive.
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Christofaro explained thediscrepancy to the jury in his testimony by relating that he had just recently learned that the Xrays did not indicate a fracture and only previously testified to the contrary because of amisunderstanding over what he had been told by a doctor.