| People v Irby |
| 2016 NY Slip Op 04469 [140 AD3d 1319] |
| June 9, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John Irby, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
James R. Farrell, District Attorney, Monticello (Hannah Rose Prall of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Sullivan County(LaBuda, J.), rendered April 3, 2014, upon a verdict convicting defendant of the crimesof reckless endangerment in the second degree, unlawful imprisonment in the firstdegree, assault in the third degree, reckless driving and endangering the welfare of achild (two counts) and the traffic infraction of failure to stop at a stop sign (threecounts).
In June 2013, defendant, the victim and their two children were residing in theVillage of Ravena, Albany County, and the victim was five months pregnant with theirthird child. On June 25, 2013, the victim, who was visiting her family in Swan Lake,Sullivan County, had a telephone conversation with defendant, who was in AlbanyCounty, at which time defendant expressed his desire that the victim and the childrenreturn home. When the victim indicated that she was not yet ready to return, defendanttold her to come back or they were breaking up. The victim surmised that her refusalwould trigger defendant's travel to Sullivan County and, at some point after 2:00 p.m.that day, defendant arrived at the place of business of the victim'sfamily—purportedly to take the victim and the children to get ice cream.
Shortly after the victim and the children got into the couple's vehicle and defendantdrove away, an argument broke out, during the course of which defendant struck thevictim, who was riding in the front passenger seat, in the face. As the argument escalated,the victim jumped out of the window of the moving vehicle and attempted to flee.Defendant stopped the car, ran after the victim, grabbed her and returned her to thevehicle, during the course of which the [*2]victim losther shirt, bra and shoes. Defendant thereafter drove around the countryside—oftenat a high rate of speed and running various stop signs—until he was apprehendedby law enforcement. Portions of this incident and the ensuing chase were witnessed by abystander and certain members of the victim's family, the latter of whom had followeddefendant's vehicle—fearing for the victim's safety.
As a result of this incident, defendant was charged in an 11-count indictment withreckless endangerment in the first degree, unlawful imprisonment in the first degree,assault in the third degree, reckless driving, endangering the welfare of a child (twocounts) and failure to stop at a stop sign (five counts). Following a jury trial, defendantwas found guilty of reckless endangerment in the second degree (as a lesser includedoffense), unlawful imprisonment in the first degree, assault in the third degree, recklessdriving, endangering the welfare of a child (two counts) and failure to stop at a stop sign(three counts). Defendant was sentenced, as a second felony offender, to a prison term of2 to 4 years upon his unlawful imprisonment conviction and received a conditionaldischarge as to the remaining offenses. This appeal ensued.
Defendant initially contends that his convictions of unlawful imprisonment in thefirst degree and assault in the third degree are against the weight of the evidence. Wedisagree. "A person is guilty of unlawful imprisonment in the first degree when he [orshe] restrains another person under circumstances which expose the latter to a risk ofserious physical injury" (Penal Law § 135.10). Insofar as is relevant here,the restraint element "means to restrict a person's movements intentionally andunlawfully in such manner as to interfere substantially with his [or her] liberty by movinghim [or her] from one place to another, or by confining him [or her] either in the placewhere the restriction commences or in a place to which he [or she] has been moved,without consent and with knowledge that the restriction is unlawful" (Penal Law§ 135.00 [1]; see People v Lotmore, 276 AD2d 901, 901-902[2000], lv denied 96 NY2d 736 [2001]). "[O]ne is deemed to have been moved'without consent' when that movement is accomplished by, as relevant here, physicalforce or intimidation" (People v Lotmore, 276 AD2d at 902, quoting Penal Law§ 135.00 [1]). As Penal Law § 135.10 makes clear, actualserious physical injury need not occur; rather, "[f]irst-degree unlawful imprisonment onlyrequires that the circumstances expose the restrained person to a risk, of unspecifieddegree, of serious physical injury" (People v Cespedes, 122 AD3d 417, 418 [2014], lvdenied 25 NY3d 1070 [2015] [internal quotation marks omitted]).
Here, the unlawful imprisonment count pertained to defendant's conduct followingthe victim's initial escape from the moving motor vehicle—specifically,defendant's actions in pursuing and grabbing the victim, forcing her back into the vehicleand thereafter traveling at a high rate of speed along an "unmarkedroad"—meaning that there were no fog lines or centerline markings—with"a lot of curves," "a lot of blind spots," "limited sight distance[s]" and a posted speedlimit of 30 miles per hour, all the while passing through "an area with lots of homes andbungalow colonies." To that end, the People offered the testimony of a witness who wasgardening near the intersection of Stanton Corners Road and Old White Lake Turnpikein the Town of Liberty, Sullivan County when she observed a car speeding down theroad and the victim[FN1] "hanging out the window" screaming"help me." As the car "veered off" of the road, the victim "jumped out the window" andthe witness yelled for the victim to run toward her. As the witness was placing a call tothe police, she observed a man, whom she later identified as [*3]defendant, exit the vehicle, run toward the victim and "grabher," at which point he "dragged her back to the car." According to the witness, thevictim "was screaming" at this time and, after the car "sped off," the witness observed thevictim's sandals and some of her clothing lying in the road. This incident also waswitnessed in part by the victim's brother, who testified that, when he caught up todefendant and the victim, he heard screaming, "saw them scuffling into the car" andobserved defendant "throw[ ]" the victim into the vehicle. Once thevehicle—operated by defendant—left the scene, the victim's cousin, whohad been following defendant's vehicle since it left Swan Lake, continued his pursuit,during the course of which he estimated that defendant's vehicle "was going at least 80"miles per hour and observed defendant run several stop signs. This same witness testifiedthat, when defendant attempted to negotiate a particular curve at approximately 60 milesper hour, "the rear corner of the car looked like it was lifting up."
In addition to the foregoing, the jury considered the testimony of the victim. On thispoint, there is no question that the victim was a reluctant witness and downplayeddefendant's actions throughout the course of her testimony. That said, the victimnonetheless acknowledged that, after she jumped out of the moving vehicle, defendantran after her and "grabbed [her] by [her] arms," at which point the victim "wiggled out"of her top, bra and flip flops in an effort to avoid having defendant touch her. Asdefendant "walked" the victim back to the vehicle, the victim testified that her arms"were up [her] back"—a maneuver subsequently acknowledged by the victim to be"a Nelson lock"[FN2] —and she conceded that shecould not move. Although the victim could not recall precisely what defendant said toher after she was back inside the vehicle, she conceded that he "may have" told her "notto touch the f'ing door [again] or else he would kill" her. Finally, the victim denied thatdefendant was speeding at any point, contending instead that the nature of the roads weresuch that "it seems like you're flying, but you are really doing the speed limit."
While a different verdict would not have been unreasonable, "viewing the evidencein a neutral light and deferring to the jury's credibility assessments" (People v Kocsis, 137 AD3d1476, 1479 [2016]), we are satisfied that the verdict convicting defendant ofunlawful imprisonment in the first degree is in accord with the weight of the evidence(cf. People v Cespedes, 122 AD3d at 418). We reach a similar conclusion withregard to defendant's conviction of assault in the third degree. The victim admitted thatdefendant hit her in the face, and the intent required to sustain a conviction under PenalLaw § 120.00 (1) "may be inferred from . . . defendant'sconduct and from the surrounding circumstances" (People v Knox, 137 AD3d 1330, 1331 [2016] [internalquotation marks and citation omitted]; see People v Taylor, 134 AD3d 1165, 1166 [2015], lvdenied 26 NY3d 1150 [2016]).
Defendant next contends that County Court erred in allowing a State Policeinvestigator to testify as to an out-of-court statement made by the victim followingdefendant's apprehension. We disagree. The victim's statement to the investigator,wherein she indicated—"in sum and substance"—that defendant "was goingto kill [her]" and pleaded with the investigator not to leave her side, was not offered forthe truth of the matter asserted but, rather, to provide background information and toexplain why the investigator responded in the manner that he did (see People v Coker, 121 AD3d1305, 1306 [2014], lv denied 26 NY3d 927 [2015]; People v McCottery, 90 AD3d1323, 1325 [2011], lv denied 19 NY3d 975 [2012]). While a more detailedlimiting instruction arguably could have been provided, County Court did advise the jurythat [*4]such testimony was not being offered for its truthbut, instead, to explain why "the investigator did whatever he did." To the extent thatdefendant now finds County Court's explanation to be inadequate, this issue isunpreserved for our review as defendant neither raised any objection in this regard norrequested that any additional instructions be provided (see People v Tucker, 291AD2d 663, 665 [2002], lv denied 98 NY2d 703 [2002]). In any event, the victimhad already testified on direct examination—without objection—thatdefendant had said that "[h]e was going to hurt [her]," she acknowledged that defendantthreatened to kill her and she did not dispute that she "might" have told the State Policethat defendant said, "[Y]ou're going to die today." Hence, we discern no error as to theadmission of the investigator's testimony.
Defendant's remaining arguments do not warrant extended discussion. Althoughdefendant contends that his conviction of unlawful imprisonment in the first degreeshould be reversed because it merged with his conviction of reckless endangerment in thesecond degree, this issue is unpreserved for our review due to defendant's failure toadvance this argument before County Court (see People v Hanley, 20 NY3d 601, 606 [2013]; People v Kruppenbacher, 81AD3d 1169, 1170 [2011], lv denied 17 NY3d 797 [2011]; People v Ross, 43 AD3d567, 570-571 [2007], lv denied 9 NY3d 964 [2007]), and we declinedefendant's invitation to exercise our interest of justice jurisdiction in this regard.Defendant further argues that County Court's admonitions to the jury at certain pointsduring the trial were inadequate but, again, this issue is unpreserved in the absence of atimely objection (see People vEdwards, 69 AD3d 755, 755 [2010], lv denied 15 NY3d 749 [2010]; People v Dashnaw, 37 AD3d860, 862 [2007], lv denied 8 NY3d 945 [2007]). In any event, "the recordreveals that County Court's instructions adequately conveyed to the jury its function,duties, and conduct" (People v Dashnaw, 37 AD3d at 862 [internal quotationmarks and citation omitted]). Accordingly, the judgment of conviction is affirmed.
McCarthy, J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The witness did notspecifically identify the victim as the woman she observed on the day in question, butthere is no dispute that they are one and the same.
Footnote 2:According to the victim,defendant just did this "[f]or a little bit" in order "to get [her] attention."