| People v Samba |
| 2012 NY Slip Op 05335 [97 AD3d 411] |
| July 3, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v SeugnSamba, Also Known as Serigue Samba, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Matthew T. Murphy of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered April 7, 2010,convicting defendant, after a jury trial, of assault in the second degree and criminal possession ofa weapon in the second and third degrees, and sentencing him, as a second violent felonyoffender, to an aggregate term of 10 years, unanimously affirmed.
At trial, Rashad Blake, the victim of the assault, testified as follows: Shortly after 11:00 p.m.on May 30, 2009, defendant approached Blake and his friend, Keith Edwards, on West 111thStreet in Manhattan. Blake and Edwards had known defendant for several years. During a verbalexchange concerning Blake's brother, defendant removed a gun from his vest. Defendant steppedback and pointed his gun at Blake's waist. When Blake stepped forward, defendant hit Blake inthe head with "the butt of the gun." As defendant hit him, Blake heard the gun "[go] off [with] aloud pop" sound. Blake fell to the ground, not knowing if he had been shot or hit with the gun.Blake lost consciousness, and when he came to, his head was bleeding and he was in pain.Edwards also testified and corroborated Blake's testimony. Edwards explained that the sound heheard when Blake was hit "was a gunshot like."[FN*]
A bystander called the police. A police officer who responded testified that Blake told himthat he had been "hit over the head with a gun" and that "the gun had gone off." Although thearea was searched, no gun or ballistics evidence was recovered.
Blake was brought to the hospital by ambulance. The physician who treated him testified thatBlake told him he had lost consciousness for a short time after he was hit with the handgun. Thephysician further testified that he diagnosed Blake with a scalp laceration and head injury, andclosed the wound with three staples. A detective who visited Blake in the hospital that [*2]evening testified that Blake told him that defendant had hit Blakeover the head with a gun, causing the gun to discharge.
Following a jury trial, defendant was convicted of second-degree assault, and second-degreeand third-degree criminal possession of a weapon. The People asked for the maximum sentenceof 15 years. Defendant was adjudicated a second violent felony offender and sentenced to anaggregate term of 10 years.
On appeal, defendant argues that the People failed to prove his guilt with legally sufficientevidence. With regard to the assault conviction, defendant claims that the People failed to presentevidence that Blake suffered "physical injury." With regard to the weapon possessionconvictions, defendant argues that the People did not present sufficient evidence that defendantpossessed an "operable weapon" that "was loaded with 'live' ammunition." Defendant claims thatas a result, the sentences imposed were excessive.
For the reasons set forth below, we find that all of the convictions were based on legallysufficient evidence. This Court's review of the legal sufficiency of trial evidence requires us todetermine whether "any valid line of reasoning and permissible inferences could lead a rationalperson to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed inthe light most favorable to the People" (People v Williams, 84 NY2d 925, 926 [1994]).Furthermore, it is "well settled that matters of credibility are reserved for the triers of fact, whohave had an opportunity to observe the demeanor of the witnesses and are therefore in the bestposition to weigh their testimony" (People v Jones, 165 AD2d 103, 108 [1991], lvdenied 77 NY2d 962 [1991]).
Initially, we note that defendant's argument that the victim did not suffer physical injury isunpreserved (see People v Gray, 86 NY2d 10, 19 [1995]), and we decline to review it inthe interest of justice. As an alternative holding, we reject it on the merits. To establishsecond-degree assault the People must prove beyond a reasonable doubt that defendantintentionally caused the victim to suffer physical injury by means of a dangerous instrument(see Penal Law § 120.05 [2]). " 'Physical injury' . . . means'impairment of physical condition or substantial pain' " (People v Chiddick, 8 NY3d 445, 447 [2007], quoting Penal Law§ 10.00 [9]). Generally, issues of physical condition and substantial pain are questions forthe trier of fact (People v Guidice, 83 NY2d 630, 636 [1994]). Factors considered inresolving such issues include the subjective seriousness of a victim's wound and the medicaltreatment required (see id.). Pain need not be excruciating or incapacitating to supportphysical injury (see Chiddick, 8 NY3d at 447). Evidence that a victim's injury requiredmedical attention, such as stitches, and caused him substantial pain, is generally sufficient toestablish physical injury (see e.g. Peoplev Stone, 45 AD3d 406 [2007], lv denied 10 NY3d 817 [2008]).
In this case, Blake testified that when defendant struck him on the head with the revolver, hetemporarily lost consciousness and awoke bleeding and in pain. The physician and hospitalrecords establish that his head was cut and that staples were used to close the wound. Blakefurther testified that when he woke the next morning, his jaw was swollen, his face was numb,and he had difficulty eating. He continued to have pain for the next two weeks and was unable towork for one week. In court, he pointed to a scar on the side of his head left by defendant's gun.The direct testimony of Blake, as well as that of the physician who treated him, provided the jurywith sufficient evidence to conclude that Blake suffered "physical injury" within the meaning of[*3]the Penal Law.
As to the criminal possession of a weapon charges, the People presented sufficient evidencethat defendant possessed an operable firearm. To establish defendant's guilt of criminalpossession of a weapon in the second degree, the People must prove beyond a reasonable doubtthat defendant possessed a loaded firearm outside his home or business, and that he intended touse it unlawfully against another (Penal Law § 265.03 [1]). To establish criminalpossession of a weapon in the third degree, the People must prove that defendant possessed afirearm and had been previously convicted of a crime (Penal Law § 265.02 [1]). Proof ofoperability is an essential element of the crime of criminal possession of a weapon (People vHechavarria, 158 AD2d 423, 424-425 [1990]). An operable firearm is one that is capable ofdischarging ammunition (see People v Velez, 278 AD2d 53 [2000], lv denied 96NY2d 808 [2001]).
Here, defendant does not dispute that he possessed a weapon outside of his home, that heintended to use it unlawfully and that he had been previously convicted of a crime. Instead,defendant argues that the People failed to prove that he was holding an "operable" gun, or a gunthat was loaded with "live" ammunition.
Where, as here, there is no gun or ballistics evidence recovered, those elements may beproved circumstantially through eyewitness testimony and surrounding circumstances(Hechavarria, 158 AD2d at 425, citing People v Borrero, 26 NY2d 430, 436[1970]; see e.g. People v Bianca, 91AD3d 1127 [2012]; People v Jackson, 288 AD2d 52 [2001], lv denied 97NY2d 729 [2002]). Thus, a witness's testimony that he or she heard gunshots providescircumstantial evidence that a gun was loaded and operable (see e.g. People vMaeweather, 159 AD2d 1008, 1008 [1990], lv denied 76 NY2d 738 [1990][witnesses "heard a noise like the firing of a gun"]; Hechavarria, 158 AD2d at 423-425[the defendant was seen holding a gun and there was the sound of gunfire]; People vCiola, 136 AD2d 557 [1988], lv denied 71 NY2d 893 [1988] [witnesses saw andheard the defendant fire the gun]). Furthermore, no expert testimony is required when the matterto be determined lies "within the ken" of an ordinary juror (People v Madera, 24 AD3d 278, 284 [2005], lv denied 6NY3d 815 [2006]; see Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 147 [1976]).
Here, there is no dispute that defendant was holding a gun and that he struck Blake in thehead with it. Both Blake and Edwards testified that when defendant struck Blake, the gun "wentoff," and that they heard a "loud pop" or gunshot sound as it discharged. The sound of a gunshotmay be said to be within the realm of common knowledge. Thus, the jury needed no expertassistance to determine that the witnesses heard the gun fire. Presented with Blake's and Edwards'testimony, the jury was entitled to conclude that defendant possessed a loaded, [*4]operable handgun. Accordingly, there is no basis upon which todisturb the jury's verdict.
We find that defendant's sentences were not excessive. Concur—Mazzarelli, J.P.,Friedman, Catterson, Renwick and Freedman, JJ.
Footnote *: The use of "like" by the witnessfollowing "gunshot" is not a grammatical error to be acknowledged by sic. Rather, it is thepopular jargon of the grammatically superfluous repetition of "like" as a mental punctuation ormethod of adding cadence to speech. In no way does it indicate that the witness was making ananalogy to the sound of a gunshot.