| People v McCann |
| 2015 NY Slip Op 01830 [126 AD3d 1031] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRobert J. McCann, Appellant. |
Jack H. Weiner, Chatham, for appellant.
Glenn MacNeill, Acting District Attorney, Malone, for respondent.
Clark, J. Appeals (1) from a judgment of the County Court of Franklin County (MainJr., J.), rendered May 14, 2012, upon a verdict convicting defendant of the crimes ofattempted murder in the second degree, kidnapping in the second degree, criminal use ofa firearm in the first degree, assault in the first degree, attempted assault in the firstdegree and stalking in the first degree, and (2) from a judgment of said court, renderedOctober 4, 2012, which resentenced defendant on his conviction of stalking in the firstdegree.
Following a jury trial, defendant was convicted of attempted murder in the seconddegree, kidnapping in the second degree, criminal use of a firearm in the first degree,assault in the first degree, attempted assault in the first degree and stalking in the firstdegree. The charges stemmed from a campaign of harassment against his ex-girlfriendthat culminated in him kidnapping and savagely assaulting her. County Court thereaftersentenced defendant, as a second violent felony offender, to an aggregate prison term of35 years to be followed by five years of postrelease supervision. Defendant appeals fromthe initial conviction, as well as a resentencing upon the stalking conviction that did notaffect his aggregate sentence.
Defendant contends that the verdict was not supported by legally sufficient evidence,but his general motion to dismiss at the close of the People's proof left that argumentunpreserved for our review (seePeople v Valverde, 122 AD3d 1074, 1075 [2014]; People v Nichol, 121 AD3d1174, 1176 [2014]). "Nevertheless, his concomitant claim that the convictions wereagainst the weight of the evidence requires this Court to assess the sufficiency of theevidence as [*2]to each element of the crimes"(People v Nichol, 121 AD3d at 1176 [citations omitted]; see People v Danielson, 9NY3d 342, 349 [2007]). To that end, the victim testified that defendant was verballyand physically abusive while they were dating. In August 2010, the victim told defendantthat she did not want to be with him any longer and, shortly thereafter, defendantapproached her in a rage, shoved her off of an exercise machine and began screaming ather in public. Defendant then engaged in a campaign of harassment against the victimthat lasted several months and included his repeatedly accosting her in public,telephoning and texting her, notwithstanding her telling him in no uncertain terms thatshe wanted to be left alone. The harassment took a particularly ominous turn inSeptember 2010 when defendant, whom the victim visited in the hopes of reconciling,choked her and threatened to kill her. The victim testified that this course of conduct bydefendant left her with a fear of injury, and that fear can only be viewed as a reasonableone (see Penal Law §§ 120.50 [3]; 120.60).
Defendant then contacted the victim on October 5, 2010 and suggested that theymeet so that he could "say good bye to [her] the right way." The victim agreed and metwith defendant at a secluded location that defendant had selected, purportedly because hehad told people that they were no longer dating and did not want others to see themtogether. When she arrived, defendant pulled out what appeared to be a gun andinformed her that she was not going anywhere (see Penal Law§§ 135.00 [2]; 135.20, 265.09 [1] [b]; People v Smith, 41 AD3d1093, 1094 [2007], lv denied 9 NY3d 1039 [2008]). Defendant proceeded topull the victim towards him and put her in a choke hold with his arms for several minutesbefore releasing her. He then deprived the victim of her car keys and her cell phone, andforced her to accompany him on an overnight trip. During that time, defendant continuedto physically abuse the victim and threatened to kill her on numerous occasions.Defendant released her the next day, but not before forcing her to promise to marry himand to call various men to say that she was in love with defendant. After viewing theforegoing evidence in a neutral light and according due deference to the jury's credibilitydeterminations (see People vKancharla, 23 NY3d 294, 303 [2014]), we readily conclude that the convictionsfor kidnapping in the second degree, criminal use of a firearm in the first degree andstalking in the first degree are not against the weight of the evidence.
Defendant additionally argues that the verdict with regard to the assault in the firstdegree conviction was against the weight of the evidence because the victim did notsustain a serious physical injury—i.e., one "which creates a substantial risk ofdeath, or which causes death or serious and protracted disfigurement . . . orprotracted loss or impairment of the function of any bodily organ"—when heplaced her in a choke hold on October 5, 2010 (Penal Law § 10.00 [10]). Inthat regard, the victim testified that defendant choked her for two to three minutes andthat she blacked out while he was doing it. The choking left her unable to lift her head orswallow, caused hematomas in her eyes and impaired her vision for several days. Apathologist explained that the victim lost consciousness because the blood supply to herbrain had been cut off from the choking and that, had defendant not released her, shewould have died a minute or two later. The pathologist further testified that his review ofthe victim's medical records and photographs led him to believe that she had sustainedinjuries more severe than those he had observed in individuals who had actually died as aresult of strangulation. Moreover, while the victim's injuries had largely healed by thetime of trial in February 2012, she continued to suffer from chronic neck pain and analtered voice (compare People vDaniels, 97 AD3d 845, 847 [2012], lv denied 20 NY3d 931 [2012]).Inasmuch as "the jury could have rationally found that defendant's strangulation of [thevictim] was an impairment of her physical condition which created a substantial risk ofdeath" given these facts, we cannot say that the conviction of assault in the first degreewas against the weight of the evidence (People v Miller, 290 AD2d 814, 815[2002], lv denied 98 NY2d 678 [2002]; see People v Abreu, 283 AD2d194, 194-195 [2001], lv [*3]denied 96 NY2d 898[2001]; People v Perron, 172 AD2d 879, 880 [1991], lv denied 77 NY2d999 [1991]). This proof, when coupled with defendant's repeated statements that hedesired to kill the victim, further provided an ample basis to support the conviction ofattempted murder in the second degree (see People v Perron, 172 AD2d at879-880).
We do find that the conviction for attempted assault in the first degree cannot stand.Defendant was charged under the theory that, during the course of the kidnapping, heattempted to cause serious physical injury when he choked the victim a second time aftershe made an abortive effort to get help (see Penal Law § 120.10[4]). An attempt to commit a crime requires that a person, "with intent to commit a crime,. . . engages in conduct which tends to effect the commission of such crime"(Penal Law § 110.00). In contrast, felony assault punishes a felon for theactual consequences of his or her actions, and "there can be no attempt to commit a crimewhich makes the causing of a certain result criminal even though wholly unintended"(People v Campbell, 72 NY2d 602, 605 [1988]; see People v Hendrix, 56AD2d 580, 581 [1977], affd 44 NY2d 658 [1978]; People v Hassin, 48AD2d 705, 705 [1975]). Accordingly, notwithstanding the fact that defendant did notadvance this specific issue in his appellate brief, the count of the indictment charging himwith attempted felony assault is jurisdictionally defective and must be dismissed (seePeople v Burress, 122 AD2d 588, 589 [1986], lv denied 68 NY2d 810[1986]; see also People vBethea, 61 AD3d 1016, 1017 [2009]).
Defendant next contends that his statement to investigators should have beensuppressed because a martial arts instructor he requested to be with him during theinterrogation—who also happened to be a detective sergeant with the St.Lawrence County Sheriff's Department—induced him to confess. County Courtappropriately found that the instructor was not acting as an agent of the police and, in anyevent, defendant was administered Miranda warnings before the interrogationbegan (see People v Ray, 65 NY2d 282, 286 [1985]; People v Hales, 272AD2d 984, 984-985 [2000], lv denied 95 NY2d 935 [2000]). The instructoradditionally testified that he went to help defendant, only gave him friendly advice, andmade no promises or other statements that would have induced defendant to falselyconfess (see CPL 60.45 [2] [b]; People v De Pasquale, 54 NY2d 693,694-695 [1981]). Therefore, according proper deference to the credibility determinationsof County Court, we find that it properly refused to suppress defendant's statement(see People v De Pasquale, 54 NY2d at 694-695; People v Whitted, 117 AD3d1179, 1181 [2014], lv denied 23 NY3d 1026 [2014]).
Contrary to defendant's further argument, he was not deprived of the effectiveassistance of counsel due to his representation by the Franklin County Public Defender,an office that had previously represented a jailhouse informant testifying for the People.While that situation constitutes a potential conflict of interest, defendant will not prevailunless he can further show that the potential conflict affected the conduct of his defensein some way (see People vSanchez, 21 NY3d 216, 222-223 [2013]; People v Harris, 99 NY2d 202,211 [2002]; People v Ortiz, 76 NY2d 652, 656-657 [1990]). Defendant has failedto make that showing, as the witness waived his attorney-client privilege for purposes ofcross-examination and, indeed, was vigorously cross-examined (see People vHarris, 99 NY2d at 211; People v Robles, 115 AD3d 30, 36-37 [2014], lvdenied 22 NY3d 1202 [2014]).[FN*] Defendant correctly points out thatCounty Court did not ensure that "he understood the risks that may be involved withrespect to the potential conflict,[*4][but] the failure tomake such an inquiry does not constitute reversible error because defendant has notestablished that the potential conflict of interest bore a substantial relation to the conductof the defense" (People vHurlbert, 81 AD3d 1430, 1431 [2011], lv denied 16 NY3d 896 [2011][internal quotation marks and citations omitted]; see People v Jenkins, 256 AD2d735, 736-737 [1998], lv denied 93 NY2d 854 [1999]).
Defendant lastly argues that the aggregate prison sentence imposed—which is20 years in the absence of the conviction for attempted assault in the firstdegree—is harsh and excessive. Based upon our review of the record, however,we perceive neither an abuse of discretion nor the existence of any extraordinarycircumstances that would warrant a reduction in the sentence (see People v Hartman, 86AD3d 711, 713 [2011], lv denied 18 NY3d 859 [2011]; People vRodriguez, 306 AD2d 686, 689 [2003], lv denied 100 NY2d 624[2003]).
We have examined defendant's remaining claims and find them to beunpersuasive.
Lahtinen, J.P., Garry and Devine, JJ., concur. Ordered that the judgment renderedMay 14, 2012 is modified, on the law, by reversing defendant's conviction of attemptedassault in the first degree under count 6 of the indictment; said count dismissed and thesentence imposed thereon vacated; and, as so modified, affirmed. Ordered that thejudgment rendered October 4, 2012 is affirmed.
Footnote *:The witness indicatedthat he would only waive his attorney-client privilege if he were cross-examined by anattorney who had no familiarity with his prior dealings with the Public Defender, and thatcondition was met.