| People v Agron |
| 2013 NY Slip Op 03128 [106 AD3d 1126] |
| May 2, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JamesA. Agron, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered June 6, 2011, upon a verdict convicting defendant of the crimes of assault inthe third degree, attempted assault in the second degree, criminal mischief in the thirddegree, menacing in the second degree, endangering the welfare of a child (two counts)and criminal mischief in the fourth degree.
On the evening of February 11, 2010, the victim was fixing dinner in the apartmentthat she shared with defendant, their eight-month-old son and her 5½-year-olddaughter. When defendant awoke from his nap, he discovered that the victim had movedhis crack pipe and demanded to know its whereabouts. The victim "played. . . dumb," at which point defendant became infuriated and smashed hercell phone. The victim then went in search of defendant's cell phone in order to call thepolice. Defendant responded by snapping the cell phone in half and, while the victim washolding their infant son in her arms, proceeded to repeatedly strike the victim in the headand face with his fist.[FN1][*2]
As the victim attempted to shield the child, shesaw defendant lean over and grab what she described as a long, black rod-shapedobject.[FN2] When defendant moved toward her, raised the object and threatened to kill her, thevictim placed the child on the bed, at which point she was struck on the left side of herface "[h]ard enough to make [her] see stars and black out." The victim came to on thefloor "covered in blood," at which point defendant either "kicked [her] a few times" orstruck her on the side of her body with "something blunt." After again threatening thevictim, defendant packed his belongings and left the apartment via the front door, whichthe victim locked behind him. As the victim was trying to gather the children and seekassistance from a neighbor, she heard "loud pounding, knocking on the back door" of theapartment. When she went to investigate, the victim could hear defendant screaming andobserved that the bottom panel of the door—previously undamaged—wasnow "punched out and broken." At this point, the victim fled the apartment with herchildren and summoned help from passersby.
As a result of this incident, defendant was charged in a nine-count indictment withvarious crimes and, following a mistrial and a second jury trial, was convicted of assaultin the third degree, attempted assault in the second degree, criminal mischief in the thirddegree, menacing in the second degree, endangering the welfare of a child (two counts)and criminal mischief in the fourth degree. Defendant thereafter was sentenced as asecond felony offender to an aggregate prison term of 4 to 8 years. Defendant nowappeals, contending that his convictions of attempted assault in the second degree andcriminal mischief in the third degree are not supported by legally sufficient evidenceand/or are against the weight of the evidence.
We affirm. Although defendant's generalized motion to dismiss did not preserve hislegal sufficiency claim with respect to the counts at issue, "our weight of the evidencereview necessarily involves an evaluation of whether all elements of the charged crime[s]were proven beyond a reasonable doubt at trial" (People v Burch, 97 AD3d 987, 989 n 2 [2012] [internalquotation marks and citations omitted], lv denied 19 NY3d 1101 [2012]). In thisregard, a defendant is guilty of attempted assault in the second degree when, "[w]ithintent to cause serious physical injury to another person" (Penal Law § 120.05 [1]),he or she "engages in conduct which tends to" cause such injury (Penal Law §110.00; see People v Audi,88 AD3d 1070, 1071 [2011], lv denied 18 NY3d 856 [2011]). A seriousphysical injury, in turn, is one that "creates a substantial risk of death, or which causesdeath or serious and protracted disfigurement, protracted impairment of health orprotracted loss or impairment of the function of any bodily organ" (Penal Law §10.00 [10]). Where the defendant is charged with an attempt crime, he or she need notsucceed in causing a serious physical injury; rather, all that is required is that thedefendant "intended such injury and engaged in conduct directed at accomplishing thatobjective" (People v Audi, 88 AD3d at 1072; see People v Kitchings,301 AD2d 749, 750 [2003], lv denied 99 NY2d 629 [2003]; People vMiller, 290 AD2d 814, 815 [2002], lv denied 98 NY2d 678 [2002]).[*3]
Here, the victim testified[FN3]that defendant repeatedly punched her in the face, struck her with sufficient force on theside of her head to cause her to lose consciousness, kicked or struck the side of her bodywith a blunt object and threatened to either kill or "beat the s[ ] out of [her]." Under thesecircumstances, we are satisfied—notwithstanding certain inconsistencies in thevictim's testimony—that the verdict is not against the weight of the evidence(see People v Audi, 88 AD3d at 1072; People v Bruno, 47 AD3d 1064, 1066 [2008], lvdenied 10 NY3d 809 [2008]). Accordingly, defendant's conviction of attemptedassault in the second degree will not be disturbed.
Turning to the remaining charge, "[a] person is guilty of criminal mischief in thethird degree when, with intent to damage property of another person, and having no rightto do so nor any reasonable ground to believe that he or she has such right, he or she. . . damages property of another person in an amount exceeding [$250]"(Penal Law § 145.05 [2]). Damage to such property typically is "established byevidence of the reasonable cost of repairing the property" or, if the property cannot berepaired, "the replacement cost" thereof (People v Shannon, 57 AD3d 1016, 1016 [2008]).
Both the victim and her landlord testified that there was no damage to the rear doorof the apartment prior to the incident in question, the victim testified that she knew thatdefendant was responsible for breaking the door because she could hear him screamingon the other side of it—and thereafter saw him reach through the brokenpanel—and photographs contained in the record depict the resulting damage to thedoor. Additionally, the landlord testified as to the cost of replacing the door andreframing the opening ($510), and the contractor's invoice was admitted into evidence.Finally, when questioned by defense counsel as to whether she explored the possibility ofsimply repairing the door, the landlord testified that although her fiancÉ made atemporary repair on the night of the attack, "the whole frame was jilted" and the door nolonger was capable of being locked, thereby necessitating replacement. In light of suchproof, we cannot say that defendant's conviction is against the weight of the evidence (cf. People v Hooks, 71 AD3d1184, 1185-1186 [2010]). Defendant's remaining arguments on this point, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Subsequentphotographs show the victim's blood spattered on the child's face.
Footnote 2: This object was notrecovered from the victim's apartment until several days later, and the victim—atdefendant's urging and in an admitted attempt to obtain a reduction in the charges thatwould be pursued against defendant—subsequently provided a written statementwherein she denied that defendant struck her with anything other than his fist.
Footnote 3: The victim failed toappear at the second trial, prompting County Court to issue a material witness warrant.When the victim still could not be located, her testimony from the first trial was read tothe jury.