| People v Haardt |
| 2015 NY Slip Op 05225 [129 AD3d 1322] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEdmund Peter Haardt, Appellant. |
Allen E. Stone Jr., Vestal, for appellant.
Kirk O. Martin, District Attorney, Owego (Palmer J. Pelella of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Tioga County (Sgueglia,J.), rendered April 6, 2012, upon a verdict convicting defendant of the crimes ofstrangulation in the second degree, assault in the third degree and unlawful imprisonmentin the second degree.
Defendant was charged in a three-count indictment with strangulation in the seconddegree, assault in the third degree and unlawful imprisonment in the second degree. Thecharges stemmed from a June 2011 altercation between defendant and his then girlfriend.Following a jury trial, at which both the victim and defendant appeared and testified, thejury found defendant guilty of all charges. Defendant's subsequent motion to set aside thejury's verdict was denied, and County Court thereafter sentenced defendant to four yearsin prison followed by three years of postrelease supervision on the strangulation chargeand to time served on the remaining charges. Defendant now appeals.
We affirm. Initially, to the extent that defendant contends that County Court erred indenying his challenge for cause with respect to a prospective juror, we need note onlythat the individual in question was a prospective alternate juror. As no alternatejurors participated in deliberations, defendant's argument on this point is moot (see People v Rivera, 7 AD3d358, 359 [2004], lv denied 3 NY3d 741 [2004]; People v White, 297AD2d 587, 588 [2002], lv denied 99 NY2d 565 [2002]; People vCrockett, 262 AD2d 205, 205 [1999]).
Turning to defendant's challenge to the legal sufficiency and weight of the evidence,"[a] person is guilty of strangulation in the second degree when he or she commits thecrime of [*2]criminal obstruction of breathing or bloodcirculation . . . and thereby causes stupor, loss of consciousness for anyperiod of time, or any other physical injury or impairment" (Penal Law§ 121.12). Insofar as is relevant here, "[a] person is guilty of criminalobstruction of breathing or blood circulation when, with intent to impede the normalbreathing or circulation of the blood of another person, he or she . . . appliespressure on the throat or neck of such person" (Penal Law § 121.11 [a]). Asto the assault charge, "[a] person is guilty of assault in the third degree when[,]. . . [w]ith intent to cause physical injury to another person, he [or she]causes such injury to such person or to a third person" (Penal Law § 120.00[1]). Physical injury includes the "impairment of physical condition or substantial pain"(Penal Law § 10.00 [9]). Finally, "[a] person is guilty of unlawfulimprisonment in the second degree when he [or she] restrains another person" (PenalLaw § 135.05).
Here, the conflicting testimony offered by the victim and defendant presented aclassic credibility issue for the jury to resolve. For her part, the victim testified that,following a verbal altercation with defendant on the morning in question, defendantthrew her down on a bed in the house where he was renting a room, told her "that hewanted [her] to die" and squeezed her neck to the point where she "couldn't breathe" and"almost pass[ed] out three times." The photographs admitted into evidence depict variousmarks and bruises on the victim's neck (in addition to other areas of her body), and thevictim testified that "it was hard to swallow for a few days" after the attack, during whichtime she "couldn't move [her] head . . . at all." The victim further testifiedthat, during the melee, which lasted roughly 90 minutes, defendant repeatedly punched,kicked and bit her and pressed his thumb into one of her eyes—resulting invarious additional injuries. Finally, the victim stated that when she attempted to call forhelp, defendant took apart her cell phone; the victim further related that she attempted toleave the residence "a couple [of] times" but that she "kept getting dragged back in[to]"the bedroom. Eventually, the victim locked herself in a bathroom and waited for thehomeowner to return, at which point she was able to summon aid.
Defendant, on the other hand, testified that the victim had a history of mental healthissues, as well as a fondness for consuming alcohol, "doing pills" of various shapes andcolors and engaging in rough sex. According to defendant, the physical altercation withthe victim, which lasted approximately five minutes, began when he refused to engage inan "incredibly brutal" rape scenario with her, whereupon she became enraged andphysically assaulted him. Although defendant could not recall the details of thisencounter when initially questioned by the local police,[FN*] he readily admitted at trial that hepunched and bit the victim in various locations—claiming that he did so inself-defense.
In our view, the victim's testimony, which clearly was credited by the jury, and thephotographic evidence displaying her resulting injuries constitute legally sufficient toestablish each and every element of the charged crimes (see People v Carson, 126AD3d 996, 997 [2015] [assault in the third degree]; People v Peterson, 118 AD3d1151, 1154-1155 [2014], lv denied 24 NY3d 1087 [2014] [strangulation inthe second degree]; People v Lotmore, 276 AD2d 901, 901-902 [2000], lvdenied 96 NY2d 736 [2001] [unlawful imprisonment in the second degree]).Additionally, while a different verdict would not have been unreasonable, we cannot saythat the jury failed to accord the evidence the weight that it deserved (see People vPeterson, 118 AD3d at [*3]1154-1155 [strangulationin the second degree]; People vCureton, 105 AD3d 1457, 1457 [2013] [unlawful imprisonment in the seconddegree]; People v Perser, 67AD3d 1048, 1049-1050 [2009], lv denied 13 NY3d 941 [2010] [assault inthe third degree]). Accordingly, we discern no basis upon which to disturb the jury'sverdict and, for the same reasons, defendant's motion to set aside the verdict was properlydenied.
Nor are we persuaded that County Court erred with respect to its supplementalinstruction to the jury as to the definition of intent. "Where a jury requests clarification orfurther instruction, the court must direct that the jury be returned to the courtroom and,after notice to both the People and counsel for the defendant, and in the presence of thedefendant, must give such requested information or instruction as the court deemsproper. While the trial court is without discretion in deciding whether to respond, thecourt does have discretion as to the substance of the response—the only caveatbeing that the court's response must be meaningful" (People v Briskin, 125 AD3d 1113, 1121 [2015] [internalquotation marks, brackets and citations omitted]).
Here, in response to the jury's request for a "clear[ ]" definition of the term intent,County Court discussed the jury's inquiry with the People and counsel for defendant,indicated that it would be expanding upon its original charge on this point and affordedcounsel an opportunity for input. County Court thereafter responded to the jury's requestwith language that mirrored the expanded charge on intent set forth in the Criminal JuryInstructions (see CJI2d[NY] Culpable Mental States—Intent). Inasmuch asCounty Court followed the proper procedure, afforded defense counsel an opportunity toparticipate in formulating a response to the jury's note, provided the jury with ameaningful response to its inquiry and recited an accurate definition of the element atissue (see People v Cooper,107 AD3d 1054, 1055 [2013]), we reject defendant's assertion that the manner inwhich County Court handled the jury's inquiry operated to deprive him of a fair trial.Defendant's remaining contentions, including his assertion that County Court disparageddefense counsel in the presence of the jury and that the sentence imposed was harsh andexcessive, have been examined and found to be lacking in merit.
Peters, P.J., Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:According to one of theresponding officers, when he asked defendant what had occurred, defendant indicatedthat he "[did] not remember what happened, but if [the victim] said he did it, he musthave done it."