| People v Manchester |
| 2014 NY Slip Op 08873 [123 AD3d 1285] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1](December 18, 2014)
| The People of the State of New York, Respondent, vErik M. Manchester, Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Lahtinen, J.P. Appeals (1) from a judgment of the County Court of Otsego County(Burns, J.), rendered October 15, 2010, upon a verdict convicting defendant of the crimeof assault in the second degree, and (2) by permission, from an order of said court,entered February 19, 2013, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment of conviction, without a hearing.
Late in the evening of April 14, 2009, the victim rode a small motorized dirt bike updefendant's driveway in the Town of Worcester, Otsego County. The victim had riddenfrom the property of defendant's neighbors, who had an acrimonious relationship withdefendant and where defendant's former (the victim's current) girlfriend resided.Defendant exited his house, knocked the victim off the bike, threatened to kill him and,as the victim fled, fired four rounds from a 12-gauge shotgun loaded with bird-shotshells. Three of the shots—a total of over 50 pellets—struck the victim inhis back and head. A two-count indictment charged defendant with attempted assault inthe first degree and assault in the second degree. A jury found him guilty of assault in thesecond degree and he was sentenced to six years in prison as well as 1
Defendant's motion to dismiss on statutory speedy trial [*2]grounds was properly denied. Where, as here, a felony ischarged, the People must be ready within six months (see CPL 30.30 [1] [a])."Whether the People complied with this obligation is determined by computing the timeelapsed between the filing of the first accusatory instrument and the People's declarationof readiness, subtracting any periods of delay that are excludable under the terms of thestatute and then adding to the result any postreadiness periods of delay that are actuallyattributable to the People and are ineligible for an exclusion" (People v Sydlar, 106 AD3d1368, 1369 [2013], lv dismissed 21 NY3d 1046 [2013] [internal quotationmarks and citations omitted]; accord People v Fehr, 45 AD3d 920, 922 [2007], lvdenied 10 NY3d 764 [2008]). Delays caused by the defendant's requests foradjustments are excluded (see CPL 30.30 [4] [b]). Defendant was arrested andarraigned on felony complaints on April 15, 2009, indicted on November 4, 2009 and thePeople declared their readiness on November 13, 2009, which was 212 days after thefiling of the first accusatory instrument. However, defendant made three successivewritten requests for adjournments of court appearances on May 12, 2009, June 9, 2009and July 14, 2009. Although the length of the last adjournment is not clear from therecord, even limiting the total adjournment time requested by defendant to the periodfrom May 12, 2009 to July 14, 2009, an adequate number of days (63) results to reducethe time chargeable to the People to 149, which is within the statutory limit. Moreover,there was no showing of postreadiness delay chargeable to the People (see People v Pope, 96 AD3d1231, 1233 [2012], lv denied 20 NY3d 1064 [2013]).
The evidence was legally sufficient to support the conviction and the jury's verdictwas not against the weight of the evidence. When considering whether evidence waslegally sufficient, we view the evidence in the light most favorable to the People anddetermine whether " 'any valid line of reasoning and permissible inferences. . . could lead a rational person to the conclusion reached by the jury on thebasis of the evidence at trial' " (People v Ramos, 19 NY3d 133, 136 [2012], quotingPeople v Bleakley, 69 NY2d 490, 495 [1987]). Defendant argues that the proofwas insufficient to establish the "physical injury" and "dangerous instrument" elementsof second degree assault (see Penal Law § 120.05 [2]; seealso Penal Law § 10.00 [9], [13]).[FN*] The victim testified that, after beingshot, he experienced extreme pain, was covered in blood, had trouble breathing andthought he was going to die. He was treated at an emergency room where medicalpersonnel elected not to remove the pellets from his skin for fear of causing greaterdamage. The victim stated at trial that he still has pellets under his scalp, which causedhim great discomfort and headaches, and that it was very painful when the pelletseventually worked their way to the surface of his skin. The proof was clearly sufficient toestablish that the victim suffered a physical injury within the meaning of the statute (see e.g. People v Chiddick, 8NY3d 445, 447 [2007]), as well as that a 12-gauge shotgun loaded with bird-shotconstituted a dangerous instrument (see e.g. People v Perez, 93 AD3d 1032, 1035 [2012],lvs denied 19 NY3d 1000 [2012] [operational BB gun can constitute a dangerousinstrument]). Moreover, after viewing the evidence in a neutral light and independentlyweighing the evidence, while giving deference to the jury's assessment of credibility, weare unpersuaded that the verdict was against the weight of the evidence (see People vBleakley, 69 NY2d at 495).
County Court did not err in denying defendant's motion for a mistrial. A tapedinterview of defendant by police was received into evidence and started to be played forthe jury until defendant mentioned in the interview that he had previously gone to court.Defense counsel [*3]immediately objected upon theground that Sandoval material was implicated and the People had stated beforetrial that they did not intend to offer Sandoval material. County Court noted thatthe jury had heard only that defendant went to court, which could be for a civil matter orother reasons unrelated to any criminal charges against him. After listening to more ofthe interview outside the presence of the jury, County Court suppressed any furtherplaying of the tape and gave the jury a detailed curative instruction. In light of the factthat the jury never heard that defendant's prior court appearance involved a criminalmatter and the timely curative action taken by County Court, defendant was not deprivedof a fair trial by the partial playing of his interview with police (see People vSantiago, 52 NY2d 865, 866 [1981]; People v Peterson, 118 AD3d 1151, 1155-1156[2014]).
Defendant's contention that County Court's jury instructions were defective was notpreserved for our review (seePeople v Green, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062[2014]). In any event, the court's "charge, as given, was sufficient to allow 'the jury. . . [to] gather from its language the correct rules which should be appliedin arriving at [a] decision' " (People v Dickson, 58 AD3d 1016, 1018[2009], lv denied 12 NY3d 852 [2009], quoting People v Russell, 266NY 147, 153 [1934]; see People v Allah, 126 AD2d 778, 781-782 [1987], lvdenied 69 NY2d 876 [1987]).
Defendant makes cursory reference to a series of purported errors that he assertsdeprived him of a fair trial. We are unpersuaded. The 12-hour delay between whendefendant initially spoke to police after being read Miranda warnings and thenagain spoke to police after being reminded of—but notreread—Miranda warnings did not require suppression of his statements topolice (see People v Gause,38 AD3d 999, 1000 [2007], lv denied 9 NY3d 865 [2007]). Review of thePeople's opening statement reveals that, contrary to defendant's contention, the statementsufficiently set forth the charges and facts that the People expected to prove (seePeople v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451 US 911 [1981];People v Adams, 139 AD2d 794, 795 [1988]). A juror, who belatedly recalledafter being sworn that nearly 20 years earlier his daughter had been threatened by herformer boyfriend, was adequately questioned by County Court and determined not to begrossly unqualified to continue to serve on the jury (see CPL 270.35 [1];People v Buford, 69 NY2d 290, 298-299 [1987]). Defendant's contention that acurative instruction should have been given after a brief outcry from a spectator duringthe trial was not preserved by an objection or request for an instruction and, in any event,it is not clear at whom the outcry was directed and neither the outcry nor County Court'shandling of it deprived defendant of a fair trial (see People v Jones, 100 AD3d 1362, 1365 [2012], lvdenied 21 NY3d 1005 [2013], cert denied 571 US &mdash, 134 S Ct 694[2013]). No reasonable view of the evidence supported a justification charge for thedefense of a person and, thus, County Court did not err in refusing to give such a charge(see Penal Law § 35.15; People v Ramirez, 118 AD3d 1108, 1112 [2014]; People v Johnson, 91 AD3d1121, 1122 [2012], lv denied 18 NY3d 959 [2012]). Review of defendant'sremaining assertions regarding trial errors reveals no reversible error.
Next, we consider defendant's ineffective assistance of counsel argument. Adefendant's constitutional right in such regard is satisfied " '[s]o long as theevidence, the law, and the circumstances of a particular case, viewed in totality and as ofthe time of representation, reveal that the attorney provided meaningfulrepresentation' " (People v Henry, 95 NY2d 563, 565 [2000], quotingPeople v Baldi, 54 NY2d 137, 147 [1981]). A hearing is not required on a CPLarticle 440 motion when the merits of the claimed ineffectiveness can "be determined onthe trial record and defendant's submissions on the motion" (People v Satterfield,66 NY2d 796, 799 [1985]; seePeople v Robetoy, 48 AD3d 881, 883 [2008]). Here, the record reveals thatcounsel made pretrial motions and successfully had some evidence suppressed, set forth acogent opening [*4]statement, interjected timely andsustained objections as well as successful trial motions, and articulated a cogent closingargument. Defendant nevertheless contends that the victim's animosity toward him couldhave been better developed, and an expert might have testified that the three shots that hitthe victim all bounced off the ground. These and defendant's other contentions reflectsecond-guessing of trial strategy with the clarity of hindsight, which does not constituteineffectiveness (see People v Benevento, 91 NY2d 708, 712 [1998])." '[V]iewed objectively, the transcript and the submissions reveal the existence ofa trial strategy that might well have been pursued by a reasonably competentattorney' " (People vBarboni, 21 NY3d 393, 406 [2013], quoting People v Satterfield, 66NY2d at 799).
The sentence, which was less than the maximum, was not an abuse of discretion and,given defendant's act of repeatedly shooting the victim, we find no extraordinarycircumstances that would warrant a reduction thereof (see People v Fields, 68 AD3d1537, 1538 [2009], lv denied 14 NY3d 887 [2010]).
Garry, Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *:The case was presentedupon the theory that the shotgun was a "dangerous instrument," and the jury was notcharged regarding a "deadly weapon" (Penal Law § 10.00 [12]; seePenal Law § 120.05 [2]).