| People v Johnson |
| 2013 NY Slip Op 04377 [107 AD3d 1161] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Andrea Johnson, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedDecember 19, 2011 in Schenectady County, upon a verdict convicting defendant of thecrimes of attempted assault in the first degree (two counts) and attempted gang assault inthe first degree.
On March 30, 2010, Latoya King (hereinafter the victim) was walking alone on astreet near her home in the City of Schenectady, Schenectady County when an SUVpassed by in which defendant, whom she recognized, was a passenger. Moments later,defendant and three other females unknown to the victim turned a corner on foot comingin her direction; defendant stated "we are going to get her" and the group circled aroundthe victim. Defendant and the victim got into an altercation, during which the victim wastripped or fell over, and then defendant came down toward the victim and cut the rightside of her face with what she testified felt like a knife or blade. The victim grabbeddefendant's arm to block a second female from cutting her with a small pocketknife, butthat second assailant was still able to inflict a cut to the left side of her face. The victimmanaged to escape and sought medical treatment at an emergency room, where stitcheswere applied to close the vertical cut to the right side of her face, which extended fromher hairline, over her eye and down to her upper lip, where the laceration was deepest.Defendant was indicted on charges of assault in the first degree (two counts) and gangassault in the first degree.[*2]
At defendant's trial, the victim identifieddefendant as her assailant, and her visible facial scar was observed by the jury. ThePeople established that in early 2010, the victim began a relationship with CharlesGreene, who was defendant's former long-term boyfriend. Thereafter, defendant beganleaving voice mail and text messages harassing and threatening the victim and herchildren, including threats to kill or cut her. Greene, who was no longer dating the victimat the time of trial, testified that he overheard some of defendant's messages on thevictim's phone, threatening her and himself. Gloria George, a friend of the victim whowas incarcerated in the same block area in the county jail as defendant, testified thatdefendant confronted her about being friends with the victim. George overhearddefendant telling several other inmates—who asked why she was "messing with"George—that she had been in an altercation with the victim during which shejumped the victim and cut her face; George also heard defendant threaten to cut the otherside of the victim's face. George was subpoenaed to testify and did not receive anypromises or plea deals in exchange for her testimony.
Letesha Henry testified that she met defendant while both were incarcerated in thecounty jail and, after daily conversations over the course of several months, they becamefriends. Henry testified that defendant recounted the incident with the victim, describinghow she had harassed and threatened the victim after learning that Greene was in arelationship with her; defendant explained that she was out with her friends when shejumped the victim and cut her face while defendant's friends held her down, admittingshe "always keeps a razor on her[self]." The jury was informed that Henry testifiedpursuant to a plea agreement in which—in exchange for her truthful testimony atdefendant's trial—she would be permitted to enter a guilty plea to the reducedcharge of second degree assault to resolve a pending first degree assaultcharge,[FN1]and be sentenced to 2½ years in prison. Defendant testified, denying that sheassaulted the victim. She claimed that she was at her Schenectady home the entire day ofthe assault with her boyfriend and best friend, both of whom also so testified. Convictedafter a jury trial of attempted assault in the first degree (two counts) and attempted gangassault in the first degree, defendant was sentenced to three concurrent prison terms of 10years with five years of postrelease supervision, and now appeals.
The jury's verdict was not contrary to the weight of credible evidence.[FN2]The convictions for attempted first degree assault were proved with evidence thatdefendant, with intent to cause serious physical injury and to seriously and permanentlydisfigure the victim, engaged in conduct tending to effect the commission of these crimes(see Penal Law §§ 110.00, 120.10 [1], [2]). Neither evidence ofactual serious physical injury nor evidence of serious and permanent disfigurement wasrequired for these attempt convictions (see People v Koufomichalis, 2 AD3d 987, 988 [2003],lv denied 2 NY3d 742 [2004]), and defendant's intent was readily inferable [*3]from her conduct and remarks (see People v Brown, 100AD3d 1035, 1036-1037 [2012], lv denied 20 NY3d 1009 [2013]). While thevictim was not sure that she actually saw a knife or razor in defendant's hand, and noweapon was found, her testimony clearly established that, as defendant came toward her,she felt a knife or blade in defendant's hand cutting into her face, and she sustainedlaceration wounds, all of which established that defendant attempted to assault her withan object that was readily capable of causing death or serious physical injury, i.e., adangerous instrument (see Penal Law § 10.00 [13]; People vCarter, 53 NY2d 113, 116-117 [1981]; People v Hamer, 69 AD3d 484, 484 [2010], lvdenied 15 NY3d 750 [2010]; People v Wilson, 240 AD2d 774, 775 [1997],lv denied 90 NY2d 899 [1997]).
With regard to defendant's conviction of attempted gang assault in the first degree,the proof demonstrated that defendant, acting with the intent to cause serious physicalinjury to the victim and "aided by two or more persons actually present," engaged inconduct tending to effect the commission of this assault (Penal Law § 120.07;see Penal Law § 110.00). The People were not required to prove that theothers present actually aided defendant's assault—although the testimonyestablished that one other assailant also cut the victim while another verbally encouragedthe assault—or that the others shared her criminal intent, only that they were "in aposition to render immediate assistance to the defendant" (People v Sanchez, 13 NY3d554, 564 [2009]; seePeople v Cordato, 85 AD3d 1304, 1311 [2011], lv denied 17 NY3d 815[2011]). Thus, even if a different verdict would have been reasonable, uponweighing—in a neutral light—the sharply conflicting testimony regardingwhether defendant perpetrated this assault, and according considerable deference to thejury's ability to observe the witnesses and assess their credibility, we conclude that thejury was entirely justified in rejecting defendant's unpersuasive alibi testimony and increditing the account of the victim regarding the assault, as corroborated by otherwitnesses (see People vDanielson, 9 NY3d 342, 348 [2007]).
Defendant next argues that Supreme Court erred in denying her motion to set asidethe verdict which, as relevant here, was premised upon the People's failure to disclosecertain Brady material, i.e., the full terms of Henry's cooperation agreement,which she contends impaired the defense's ability to impeach Henry's credibility(see CPL 330.30 [1]). At trial, the People elicited from Henry that her agreementwith the People allowed her to enter a guilty plea to a reduced assault charge withsentencing leniency, as noted above, in exchange for her truthful testimony at defendant'strial. What the People did not elicit or disclose[FN3]is that Henry had concomitantly agreed to testify against another person in an unrelatedprosecution for armed robbery, also based on that person's admissions to her while theywere incarcerated.[FN4]The parties dispute whether this constitutes Brady material subject to disclosure.
"A Brady violation occurs when the People fail to timely disclose allexculpatory and [*4]material evidence (see Brady vMaryland, 373 US 83 [1963]), including evidence that could be used to challengethe credibility of a crucial prosecution witness" (People v Williams, 50 AD3d 1177, 1179 [2008] [citationomitted]) or "[t]he existence of an agreement between the prosecution and a witness,made to induce the testimony of the witness" (People v Cwikla, 46 NY2d 434,441 [1979]; see People v Steadman, 82 NY2d 1, 7 [1993]; People vSavvides, 1 NY2d 554, 557 [1956]; see also Giglio v United States, 405 US150, 154-155 [1972]).[FN5]The People emphasize that the jury learned that Henry was testifying pursuant to a verybeneficial cooperation agreement and the full extent of the leniency and benefits affordedher, which the defense made full use of in impeaching her on cross-examination. ThePeople also argue that Henry's agreement to testify in an unrelated case is irrelevant toher credibility and is not Brady evidence. Defendant argues that she wasprejudiced because the jury did not learn that Henry had also agreed, as part of the sameagreement in which she was testifying against defendant, to testify that another inmatehad similarly confessed to her in jail; defendant asserts that this evidence would haveundermined the believability of Henry's testimony here, as defendant had likewiseallegedly confessed to her in jail.
Certainly, a cooperating witness's knowledge of, and agreement to also testify in, anunrelated matter may often not sufficiently bear on the witness's credibility orbelievability in the present prosecution so as to constitute impeachment material subjectto Brady disclosure (see People v Jones, 272 AD2d 930, 932 [2000],lv denied 95 NY2d 891 [2000]). Case law does not, however, offer a definitiveanswer as to whether the People's Brady obligation here extended only to thebenefits and leniency conferred on Henry as a cooperating witness and her agreement totestify in this prosecution, or whether the People's Brady obligation extendedfurther to all terms of the cooperation agreement, including her commitment to testify inan unrelated prosecution. Under the circumstances of this case, we find that a convincingargument can be made that Henry's additional obligation to testify in the othermatter—and the similarity of her expected testimony that the inmate had confessedto her—was relevant to her credibility in this case (cf. People v Colon, 13 NY3d343, 349 [2009]), mindful that, ordinarily, "it is for the jury to determine how muchvalue to assign [a cooperation agreement] in terms of assessing the witness's credibility"(People v Novoa, 70 NY2d 490, 497 [1987]).
However, even assuming, without deciding, that the full terms of Henry'scooperation agreement—including those aspects pertaining to the othermatter—were Brady material subject to disclosure, reversal is not required.Where, as here, nondisclosure follows the defense's specific request for materials,evidence is deemed material and reversal is required only "if there is a 'reasonablepossibility' that, had that material been disclosed, the result would have been different"(People v Bond, 95 NY2d 840, 843 [2000]; see People v Fuentes, 12 NY3d 259, 263 [2009];People v Williams, 50 AD3d at 1179). Here, the victim was a strong witnesswho, from the outset, positively identified defendant—who she knew—asher assailant; her testimony was corroborated by Greene's testimony regardingdefendant's threats to the victim and medical evidence of the victim's lacerated face. Thetestimony of George—who, while a friend of the victim, received no benefit forher testimony—that she heard defendant admit cutting the victim's face during thisassault further corroborated the victim's account. Thus, the verdict in no sense [*5]turned solely or even predominantly on Henry's testimony(cf. People v Colon, 13 NY3d at 349; People v Steadman, 82 NY2d at 5,8-9; People v Williams, 50 AD3d at 1180), and we do not find that there was areasonable possibility that, had the jury learned that Henry also agreed to testify in anunrelated case to a confession by another inmate, it would have found defendant notguilty of these charges (see People v Vilardi, 76 NY2d 67, 77 [1990]; People v Phillips, 55 AD3d1145, 1147 [2008], lv denied 11 NY3d 899 [2008]). Accordingly, any errorwas harmless (see People v Steadman, 82 NY2d at 8-9; People vCrimmins, 36 NY2d 230, 237 [1975]).
Defendant's remaining contentions have been reviewed, including her challenge tothe sentence as harsh and excessive or as cruel and unusual punishment, and determinedto lack merit.
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Henry faced a potential5- to 25-year sentence.
Footnote 2: To the extent thatdefendant raises a challenge to the legal sufficiency of the evidence, such claim isunpreserved (see People vLane, 7 NY3d 888, 889 [2006]). However, we necessarily review thesufficiency of the evidence on each element in our review of the weight of the evidence,for which no preservation rule applies (see People v McCray, 102 AD3d 1000, 1004 n 2 [2013];People v Newkirk, 75AD3d 853, 855 [2010], lv denied 16 NY3d 834 [2011]).
Footnote 3: Supreme Court held aninquiry during the trial, outside the presence of the jury, in which the Assistant DistrictAttorney represented the terms of the agreement, and merely indicated that Henry'stestimony "in this case" was required.
Footnote 4: On the same day thatHenry signed an affidavit regarding defendant's jailhouse confessions to her, Henry hadalso signed an affidavit attesting that this other person had also confessed to herregarding an armed robbery.
Footnote 5: Further, a prosecutor isobligated to ensure a correct and complete recitation of the full terms of an agreementwith a cooperating witness (see People v Steadman, 82 NY2d at 7-8; Peoplev Cwikla, 46 NY2d at 441).