| People v Brown |
| 2012 NY Slip Op 07230 [100 AD3d 1035] |
| November 1, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Thomas F.Brown, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered June 3, 2010, upon a verdict convicting defendant of the crimes of assault in the firstdegree and criminal possession of a weapon in the third degree.
In May 2009, defendant and his girlfriend engaged in a verbal dispute at his girlfriend'sapartment in the City of Binghamton, Broome County. Police were summoned, no arrests weremade, and defendant left the apartment. Shortly after midnight later that same evening, defendantsaw his girlfriend walking on a street; he exited his truck and instructed her to get into the vehiclewith him. The victim, an acquaintance of the girlfriend, was nearby and encouraged the girlfriendnot to accompany defendant. A brief verbal exchange between defendant and the victim precededa physical confrontation between the two men in the street. Defendant slashed the victim'sstomach with a utility knife, returned to his truck and drove off. The victim was taken byambulance to a hospital where he received treatment for a 12-inch cut, two to three inches deep,across his abdomen. Defendant was indicted for assault in the first degree and criminalpossession of a weapon in the third degree. Following a jury trial, he was found guilty of bothcounts and thereafter sentenced to an aggregate prison term of 10 years with five years ofpostrelease supervision. Defendant appeals.
We find merit in defendant's argument that the evidence in this record, viewed in the [*2]light most favorable to the People, does not establish the seriousphysical injury element of assault in the first degree. " 'Serious physical injury' is defined as'physical injury which creates a substantial risk of death, or which causes death or serious andprotracted disfigurement, protracted impairment of health or protracted loss or impairment of thefunction of any bodily organ' " (People vGray, 30 AD3d 771, 772 [2006], lv denied 7 NY3d 848 [2006], quoting PenalLaw § 10.00 [10]; see People vTucker, 91 AD3d 1030, 1031 [2012], lv denied 19 NY3d 1002 [2012]). The cutwas 12 inches long and up to three inches deep, but it did not injure any internal organs. Thesurgery to explore and staple the wound lasted less than 20 minutes, no main vessels were injuredand the victim was discharged within about 12 hours of arriving at the hospital. He was givenpain medication and his activities were limited for two weeks. The physician who treated himtestified that the wound would typically heal within 6 to 12 weeks and that he would experiencepain with movement during such time. The victim stated that his movement was restricted for acouple of months and that he currently feels a burning sensation in the area of the injury when hesweats. Although he stated that he has a scar, there is no indication that he showed the scar to thejury. "Without minimizing the nature of the victim's injuries, we are constrained by this lack ofproof to conclude that . . . the evidence does not support a finding that [he]sustained serious physical injury within the meaning of the statute" (People v Alvarez, 38 AD3d 930,934 [2007], lv denied 8 NY3d 981 [2007] [citation omitted]; see People vTucker, 91 AD3d at 1031-1032).
Defendant's contention that the intent element of the assault crime lacked legally sufficientevidence and was against the weight of the evidence is unpersuasive. The jury rejected hisassertion that he merely swung at the victim while holding his keys and that he did not know thatthe utility knife on his key chain was open. The evidence supports the jury's credibilitydetermination and conclusion in such regard. With the proof establishing an intent to inflict aserious physical injury and the victim suffering a physical injury, we reduce the conviction forassault in the first degree to attempted assault in the first degree (see People v Daniels, 97 AD3d845, 847 [2012]; People v Gray, 30 AD3d at 773) and remit for resentencing forattempted assault in the first degree.
The conviction for criminal possession of a weapon in the third degree is supported bylegally sufficient evidence and is not against the weight of the evidence. In addition to the victim,two other witnesses observed the incident and testified regarding defendant walking toward thevictim in the street where he then lunged at him swinging at his stomach. "[D]efendant's intentmay be inferred from his actions and the surrounding circumstances" (People v Malcolm, 74 AD3d 1483,1484 [2010], lv denied 15 NY3d 954 [2010]). Although defendant used the utility knifeas part of his employment, the proof in the record establishes that once he encountered thevictim, defendant intended to unlawfully use the utility knife as a weapon against the victim (see People v Campos, 93 AD3d581, 581-582 [2012], lv denied 19 NY3d 971 [2012]).[FN*]
County Court did not err in refusing to charge the defense of justification and rejecting twoof the three lesser included offenses requested by defendant. Defendant's use of a utility knifeconstituted the use of deadly physical force (see People v Mothon, 284 AD2d 568,569[*3][2001], lv denied 96 NY2d 865 [2001]), and toreceive the justification charge when employing such force "requires that 'there must have beensome reasonable view of the evidence presented that defendant reasonably believed that deadlyforce was being used or about to be used against him and that [he] was unable to safely retreat' "(People v Rodriguez, 306 AD2d 686, 688 [2003], lv denied 100 NY2d 624[2003]). Viewing the evidence in the light most favorable to defendant, there is no reasonableview thereof that the unarmed victim had any means at his disposal to employ deadly force upondefendant. Although County Court charged assault in the second degree as a lesser includedoffense, it rejected defendant's request regarding assault in the third degree and recklessendangerment. Since there was not a reasonable view of the evidence that defendant committedthese lesser offenses but not the greater, we find no error (see generally People v Gray, 30AD3d at 773; People v Muir, 3AD3d 597, 599 [2004], lv denied 1 NY3d 631 [2004]).
Comments by the prosecutor during summation were generally fair comments on the trialevidence and, in any event, the comments did not deprive defendant of a fair trial (see People v Greene, 13 AD3d991, 993 [2004], lv denied 5 NY3d 789 [2005]). Defendant's challenge to hissentence is academic since he must be resentenced on the top count (see People v Mason, 84 AD3d1502, 1504 [2011]).
Peters, P.J., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by reducing defendant's conviction of assault in the first degree under count1 of the indictment to attempted assault in the first degree; vacate the sentence imposed theronand matter remitted to the County Court of Broome County for resentencing on said count; and,as so modified, affirmed.
Footnote *: It was uncontested thatdefendant also had a prior criminal conviction, a required element of the crime with which hewas charged (see Penal Law § 265.02 [1]).