| People v Cox |
| 2015 NY Slip Op 04882 [129 AD3d 1210] |
| June 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKrystiphor Cox, Appellant. |
Kindlon Shanks & Associates, Albany (Kathy Manley of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Ceresia, J.), renderedNovember 1, 2013 in Albany County, upon a verdict convicting defendant of the crimesof resisting arrest, strangulation in the second degree, aggravated criminal contempt andcriminal contempt in the first degree (two counts).
Defendant was charged with various crimes arising out of several incidents ofalleged domestic violence involving two victims that took place between May 2011 andJuly 2012. Following a jury trial, he was convicted of resisting arrest, strangulation in thesecond degree, aggravated criminal contempt and criminal contempt in the first degree(two counts) and sentenced to an aggregate prison term of 4
Initially, defendant contends that his convictions for resisting arrest and strangulationin the second degree were against the weight of the evidence (see People vBleakley, 69 NY2d 490, 495 [1987]). To convict defendant of resisting arrest, thePeople were required to prove that "he intentionally prevent[ed] or attempt[ed] to preventa police officer . . . from effecting an authorized arrest of himself"(Penal Law § 205.30 [emphasis added]). Defendant contends that hisconviction on this charge is necessarily against the weight of the evidence because hisarrest was not based on probable cause and, therefore, was not authorized (see Peoplev Peacock, 68 NY2d 675, 676-677 [1986]).
The arresting police officer testified that, in July 2012, he saw victim A "storm[ ]"out of [*2]a bar followed by defendant, who was"scream[ing] at the top of his lungs." As the victim walked rapidly away, defendantpursued her and then reached out and touched her, and she flinched away. The arrestingofficer had immediately recognized defendant and victim A because he had responded toa domestic altercation at their residence several months earlier. The officer intervened byplacing his hand on defendant's arm and saying, "[W]hoa, relax." Defendant turned,swore at the officer and pushed him, whereupon the officer threw defendant on theground and told him that he was under arrest. A struggle ensued in which defendantrefused the officer's instructions to place his hands behind his back and attempted to tuckhis knees under himself and to roll on his side. Another police officer who assisted in thearrest stated that defendant pushed the arresting officer and refused to comply withseveral commands to put his hands behind his back, and an eyewitness stated thatdefendant "grabbed" victim A, "lunged" at the arresting officer when he was told to stopand continued to struggle with both officers until they brought him to his feet and puthim into a police vehicle.
"Probable cause does not require proof beyond a reasonable doubt but merelyinformation sufficient to support a reasonable belief that an offense has been committedby the person being arrested" (People v Williams, 89 AD3d 1222, 1223-1224 [2011],lv denied 18 NY3d 887 [2012] [internal quotation marks, ellipsis and citationomitted]). The arresting officer testified that he was aware that an order of protection hadbeen issued after the previous incident and, given the parties' behavior, was concernedthat another incident of domestic violence might be occurring or about to occur. Theofficer did not intend to arrest defendant when he placed his hand on defendant's arm,but rather was seeking to calm defendant and speak with both parties to determine whatwas happening. Only when defendant pushed the arresting officer and swore at him didthe officer place him under arrest. Given the officer's familiarity with the parties,defendant's belligerent behavior and his violent reaction to the officer's intervention, theofficer had reasonable grounds "to believe that defendant was committing, hadcommitted or was about to commit [the] offense[s]" of criminal contempt in the first orsecond degree and obstructing governmental administration in the second degree(People v Peacock, 68 NY2d at 677; see Penal Law§§ 195.05, 215.50 [6]; 215.51 [b] [v]).[FN*] Defendant raises no other challenge tothe weight of the evidence supporting this conviction and, upon our independent review,we find no reason to disturb it (see People v Baltes, 75 AD3d 656, 659-660 [2010], lvdenied 15 NY3d 918 [2010]).
Defendant's conviction for strangulation in the second degree arose from a July 2012altercation in which defendant pushed victim A down and choked her with both handswhile threatening to kill her. The victim testified that the choking lasted a couple ofseconds but "felt like forever" and that, during this time, she was unable to breathe, "wasseeing those stars" and was "going in and out." A police officer who was called to thescene saw red marks on the victim's neck. An acquaintance of the victim testified that shesaw bruising on the side and front of the victim's neck several days after the incident. Aphysician's assistant who treated the victim at the hospital stated that her neck was tenderwhen touched, that the victim described the level of her neck pain as 7 out of 10, and thatshe had difficulty in swallowing, which interfered with her ability to eat and drink. Thephysician's assistant prescribed pain medication and a medicinal mouthwash to assist thevictim in swallowing. The victim testified that she was unable to swallow solid food forabout a week. We reject defendant's argument that this evidence does not demonstratethat the victim suffered the requisite "stupor, loss of consciousness for any period of[*3]time, or any other physical injury or impairment"(Penal Law § 121.12). Although the victim did not lose consciousness, theundisputed testimony regarding her need for medical treatment, significant neck pain,visible redness and bruising, and difficulty in swallowing that persisted for a weekconstituted the requisite physical injury (see People v Peterson, 118 AD3d 1151, 1154-1155 [2014],lv denied 24 NY3d 1087 [2014]; People v Carte, 113 AD3d 191, 194 [2013], lvdenied 23 NY3d 1035 [2014]). Thus, we find that the verdict on the strangulationcharge was not against the weight of the evidence (see People v Parker, 127 AD3d 1425, 1427 [2015]).
Next, we find no merit in defendant's challenge to Supreme Court's Molineuxruling permitting the People to introduce evidence of defendant's prior bad acts.Evidence of uncharged crimes is inadmissible to show a defendant's criminal propensityor bad character, but may be admissible to show, among other things, intent or motive, ifthe probative value of the evidence outweighs the potential for prejudice (see People v Morris, 21 NY3d588, 594 [2013]; People v Alvino, 71 NY2d 233, 241-242 [1987]). "[P]riorbad acts in domestic violence situations are more likely to be considered relevant andprobative evidence because the aggression and bad acts are focused on one particularperson, demonstrating the defendant's intent [and] motive" (People v Pham, 118 AD3d1159, 1161 [2014], lv denied 24 NY3d 1087 [2014] [internal quotationmarks and citations omitted]).
Here, the People sought permission to introduce evidence of nine previous bad acts.Supreme Court granted the application as to three of these incidents but, at trial, thePeople admitted evidence of only two bad acts. The People sought to introduce evidencethat, in March 2012, defendant became angry with victim A for allegedly flirting withother men in a bar and he was kicked out of the bar for arguing with one of these men.Outside, he was confronted by several men who heard him insulting victim A, and a fighttook place in which his jaw was broken. Defendant was visibly upset with victim A andreturned alone to their shared apartment, without obtaining medical treatment. He wascharged with criminal mischief in the fourth degree and assault in the third degree forevents that occurred later that night, in which he allegedly destroyed property thatbelonged to victim A and violently attacked her when she returned to the apartment.Evidence of the events leading up to these crimes was relevant to provide backgroundinformation and to explain defendant's motive for attacking victim A and destroying herproperty (see People vCallicut, 101 AD3d 1256, 1258 n 1 [2012], lv denied 20 NY3d 1096[2013]; People v Mullings,23 AD3d 756, 758 [2005], lv denied 6 NY3d 756 [2005]; People v Poquee, 9 AD3d781, 781 [2004], lv denied 3 NY3d 741 [2004]).
As to victim B, Supreme Court allowed evidence relative to a March 2011 altercationin which defendant allegedly punched her in the eye and strangled her. One of theindictment counts charged defendant with criminal mischief in the third degree forslashing the tires of victim B's vehicle in May 2011. Evidence of the March 2011incident was relevant to this charge on the issue of motive, as it provided the jury withbackground information on the nature of defendant's relationship with victim B andtended to establish his hostility towards her (see People v Dorm, 12 NY3d 16, 19 [2009]; People v Burkett, 101 AD3d1468, 1471 [2012], lv denied 20 NY3d 1096 [2013]). The court properlybalanced the probative value of both incidents against their prejudicial effect (seePeople v Burkett, 101 AD3d at 1471; People v Thibeault, 73 AD3d 1237, 1241 [2010], lvdenied 15 NY3d 810 [2010], cert denied 562 US 1293 [2011]; compare People vElmy, 117 AD3d 1183, 1186-1187 [2014]).
Defendant failed to make an objection during trial to preserve his contention that partof the testimony of victim B violated the Molineux ruling (see People v Malak, 117 AD3d1170, 1175 [2014], lv denied 24 NY3d 1086 [2014]). In any event, wewould have found no merit in the claim. Victim B testified that she and defendant had anargument just before the alleged tire-[*4]slashingincident, and that she began to drive away from defendant but returned when hethreatened to transmit nude pictures of her to other people. Supreme Court had precludedevidence that defendant did, in fact, send nude pictures of the victim to friends, but thisruling did not preclude evidence that he threatened to do so. We agree with the court thatthe testimony was necessary to explain to the jury why victim B returned to thescene.
We reject defendant's claim that his counsel was ineffective in failing to move for aseverance of the nine indictment counts involving victim A—one of whichcharged defendant with criminal mischief in the fourth degree—from the singlecharge of criminal mischief in the third degree involving victim B. The charges wereproperly joined as they "[were] defined by the same or similar statutory provisions" (CPL200.20 [2] [c]), and defendant has neither shown that a motion for a discretionaryseverance would have succeeded nor that he suffered any prejudice from the lack ofseverance (see People v Ruger, 288 AD2d 686, 687 [2001], lv denied 97NY2d 733 [2002]; see generallyPeople v Caban, 5 NY3d 143, 152 [2005]). Notably, defendant was acquitted ofthe charge involving victim B, as well as several of the charges involving victim A, "thusdemonstrating that the jury was able to separately consider the proof with respect to eachoffense" (People v Raucci,109 AD3d 109, 118 [2013], lv denied 22 NY3d 1158 [2014]).
The failure of defendant's counsel to respond in writing to the People'sMolineux application does not, without more, rise to the level of ineffectiveassistance. As for counsel's failure to object to certain comments during the People'ssummation, most of the allegedly improper remarks constituted fair comments on theevidence or fair responses to the defense summation (see People v Head, 90 AD3d 1157, 1158 [2011]). SupremeCourt appropriately handled one remark by striking it from the record and issuing acurative instruction, and the remaining two isolated comments were not so prejudicial asto deprive defendant of a fair trial or "to render counsel's failure to object to themevidence of ineffective assistance of counsel" (People v Albanese, 38 AD3d 1015, 1019 [2007], lvdenied 8 NY3d 981 [2007]; accord People v Rowe, 105 AD3d 1088, 1091 [2013],lv denied 21 NY3d 1019 [2013]). Defendant was not deprived of effectiveassistance by his counsel's failure to impeach witnesses for minor and immaterialinconsistencies in their testimony (see People v Izzo, 104 AD3d 964, 967 [2013], lvdenied 21 NY3d 1005 [2013]), nor do we find any failures "ris[ing] to such anegregious level as to deprive defendant of meaningful representation" in defendant'sremaining claims (People vCade, 110 AD3d 1238, 1242 n 3 [2013], lv denied 22 NY3d 1155[2014] [internal quotation marks and citation omitted]). Defense counsel madeappropriate opening and closing statements, effectively cross-examined the People'switnesses, successfully moved to dismiss one of the indictment counts and obtainedacquittals on four of the remaining counts (see People v Roach, 119 AD3d 1070, 1072-1073 [2014],lv denied 24 NY3d 1221 [2015]).
Lahtinen, J.P., Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant wassubsequently charged with criminal contempt in the first degree based upon this incident,but was ultimately acquitted of this charge.