| People v Rivers |
| 2017 NY Slip Op 05870 [152 AD3d 1054] |
[*1]
| 1 The People of the State of New York, Respondent, v MichaelD. Rivers, Appellant. |
M. Elizabeth Coreno, Saratoga Springs, for appellant.
Kristy L. Sprague, District Attorney, Elizabethtown (James E. Martineau Jr. of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.), renderedApril 4, 2014, upon a verdict convicting defendant of the crimes of manslaughter in the firstdegree and gang assault in the first degree.
In August 2012, defendant, together with Paul Taylor and Scott Denno, allegedly caused thedeath of the victim, Robert Rennie, by repeatedly and viciously kicking him as he lay on a streetin the Village of Keeseville, Essex County.[FN*] Defendant was indicted on charges ofmanslaughter in the first degree, gang assault in the first degree and criminal possession of aweapon in the third degree, the latter of which County Court dismissed at the close of evidencepursuant to defendant's motion for a trial order of dismissal. A jury convicted him on the chargesof manslaughter in the first degree and gang assault in the first degree. He was sentenced toprison terms of 25 years on each conviction, to run concurrently. [*2]Defendant appeals.
Defendant initially argues that the convictions were not supported by legally sufficientevidence and were against the weight of the evidence. When considering the legal sufficiency ofthe evidence, we view the evidence in the light most favorable to the People and evaluatewhether "there is any valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by the jury on the basis of the evidence at trial and as amatter of law satisfy the proof and burden requirements for every element of the crime charged"(People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Ramos, 19 NY3d133, 136 [2012]). In a weight of the evidence review, we must first determine whether adifferent conclusion would not have been unreasonable; if not, then, "like the trier of fact below,[we] weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633,643 [2006] [internal quotation marks and citations omitted]). A verdict will only be set aside ifwe conclude—with deference to the jury's credibility assessments—that "the trier offact has failed to give the evidence the weight it should be accorded" (id. at 643-644[internal quotation marks and citations omitted]).
The focus of defendant's argument is that the evidence did not demonstrate that he intendedto cause serious physical injury to the victim or that he caused the victim's death. As relevanthere, to support a conviction for manslaughter in the first degree, the People must offer evidencedemonstrating that defendant, "[w]ith intent to cause serious physical injury to another person,. . . causes the death of such person" (Penal Law § 125.20 [1]). Tosupport a conviction for gang assault in the first degree, the People must offer evidencedemonstrating that defendant, "with intent to cause serious physical injury to another person andwhen aided by two or more other persons actually present, . . . causes seriousphysical injury to such person" (Penal Law § 120.07). At trial, the People arguedthat the elements of each crime could be satisfied either through defendant's own actions or,alternatively, as a consequence of acting in concert with Taylor and Denno. Under the latteracting in concert theory, "[i]nasmuch as the statute requires that the accomplice act with themental culpability required for the commission of the underlying crime, an accomplice must havea shared intent, or community of purpose with the principal" (People v Guerrero, 150 AD3d 883, 884 [2017] [internal quotationmarks and citations omitted]; see Peoplev Scott, 25 NY3d 1107, 1109-1110 [2015]). Moreover, "[b]ecause intent is an invisibleoperation of the mind, direct evidence is rarely available" (People v Rodriguez, 17 NY3d 486, 489 [2011] [internal quotationmarks, brackets and citations omitted]) and, therefore, "it may be inferred from a defendant'sconduct and the surrounding circumstances" (People v Callicut, 101 AD3d 1256, 1258 [2012] [internal quotationmarks and citation omitted], lv denied 20 NY3d 1096 [2013]).
Proof at trial included that defendant, Taylor and Denno believed that the victim had beenphysically assaulting defendant's cousin, Samantha Lacroix, with whom the victim had anongoing relationship. As a result of this and purported threats by the victim to burn downdefendant's residence, defendant expressed that he wanted to "teach [the victim] a lesson."Defendant, Denno, Taylor and defendant's wife—Angela Rivers—were in thevicinity of Lacroix's apartment when defendant and Denno encountered the victim. According toRivers' testimony, after defendant and Denno took hold of the victim's arms, the victim'sdemeanor was similar to "a child that didn't want to walk with his parent, kind of hanging back alittle." Following a number of verbal insults, defendant and the victim attempted to strike oneanother. Soon thereafter, Taylor reportedly attacked the victim from behind, knocking him to theground, and defendant, Denno and Taylor commenced kicking the victim, with defendantfocusing on the victim's left "chest area." The kicking continued for "[m]aybe a minute, maybeless," where [*3]defendant and Denno kicked the victim the way"you would kick a kickball maybe, without running up on the ball," while Taylor would run up toand kick the victim "[l]ike he was punting a football for a field ball." Eventually, at the insistenceof Rivers, defendant and Denno stopped kicking the victim, but Taylor continued to kick thevictim. Rivers then urged Taylor to stop kicking and defendant attempted to briefly intervene bypositioning himself in between the victim and Taylor and telling Taylor to stop, but Taylorpushed defendant aside. The attack ended soon thereafter when Taylor ceased kicking and thevictim ran from the area. The victim's body was discovered the following morning along the sideof a nearby road. Following the attack, defendant, Taylor and Denno returned to defendant'shome and "bragge[d]" about the attack to defendant's son, and defendant "said something to theeffect of, [w]e got him." Defendant's son noted that, a couple weeks prior to the attack, defendanthad expressed on two occasions that he wanted to "beat [the victim] up," once in response to thevictim's alleged threat to burn down defendant's residence. When Rivers addressed the attackwith defendant, he warned Rivers "[t]o keep [her] mouth shut." Blood on one of defendant'ssneakers and pants were consistent with the victim's DNA.
The forensic pathologist who performed an autopsy on the victim described the victim's bodyas having bruising and abrasions consistent with footwear impressions. He stated that the victim,who was 5 feet 7 inches and weighed 118 pounds, had a large quantity of blood in his abdominalcavity and lungs. The victim's various injuries included, among others, collapsed lungs, over 20rib fractures, a fractured cartilage in his neck and bruising and abrasions to his skin. The variouslacerations suffered by the victim included a five-inch tear of his liver. At the time of the attack,the victim had a blood alcohol content three times the legal level for driving in New York. Thepathologist opined that the victim's manner of death was a homicide and that the cause of deathwas internal hemorrhage and the collapse of both lungs due to multiple traumatic blunt forceinjuries. He stated that, without medical attention, both injuries could have independently causedthe victim's death and that, while the victim could have walked a short distance after sustainingthe injuries, he likely succumbed to his injuries within 15 minutes of the attack.
Viewed most favorably to the People, the evidence offered at trial was legally sufficient toestablish that, by acting in concert with Taylor and Denno, defendant intended to cause seriousphysical injury to the victim and, thereafter, caused the victim's death, albeit defendant may nothave delivered the most violent kicks (see People v Scott, 25 NY3d at 1110; People v Keitt, 141 AD3d 437,437 [2016], lv denied 28 NY3d 1073 [2016]; People v Martinez, 30 AD3d 353, 353-354 [2006], lvdenied 7 NY3d 868 [2006]). Moreover, although a different result would not have beenunreasonable, after viewing the evidence in a neutral light and deferring to the jury's credibilityassessments, we find that the weight of the evidence readily supports the manslaughterconviction (see People v Hooks, 148AD3d 930, 931 [2017], lv denied — NY3d &mdash, 2017 NY Slip Op— [June 7, 2017]; People vNafi, 132 AD3d 1301, 1302-1303 [2015], lv denied 26 NY3d 1147 [2016]; People v Chapman, 30 AD3d1000, 1001 [2006], lv denied 7 NY3d 811 [2006]). Similarly, as to defendant's gangassault conviction, we find that the evidence offered at trial was legally sufficient to establish thatdefendant, while aided by two persons present, acted in concert with these individuals inintending to cause—and in fact causing—serious physical injury to the victim, andthat this conviction was not against the weight of the evidence (see People v Cordato, 85 AD3d1304, 1310 [2011], lv denied 17 NY3d 815 [2011]; People v East, 284 AD2d962, 962 [2001], lv denied 97 NY2d 641 [2001]).
Defendant's remaining contentions do not warrant extended discussion. First, defendantargues that any statements he made during his arrest on October 5, 2012, which weresurreptitiously recorded without his knowledge, should have been suppressed as in violation of[*4]his right to counsel. However, the contested statements do notappear to have been introduced at trial, where the record reflects that the only recordingsintroduced to the jury, upon stipulation, were three redacted statements from defendant's August26, 2012 interview with the State Police, thus rendering further analysis of this argumentacademic.
Second, defendant contends that he was denied the effective assistance of counsel on thebasis of a number of purported errors, including counsel's limited cross-examination of theforensic pathologist, counsel's failure to object to portions of Rivers' testimony and counsel'sfailure to defend against the manslaughter charge. However, "defendant's criticisms of counselmust amount to more than a simple disagreement with [counsel's] strategies, tactics or the scopeof possible cross-examination" (Peoplev Ildefonso, 150 AD3d 1388, 1388 [2017] [internal quotation marks and citationomitted]). Further, "[s]o long as the evidence, the law, and the circumstances of a particular case,viewed in totality . . . , reveal that the attorney provided meaningful representation,the constitutional requirement will be satisfied" (People v Wynn, 149 AD3d 1252, 1256 [2017] [internal quotationmarks and citation omitted]). Our review of the record as a whole confirms that, notwithstandingthe acrimonious relationship between defendant and counsel, counsel engaged in proper motionpractice, pursued viable trial strategies of challenging the credibility of the only eyewitness andjuxtaposing defendant's actions against those of Taylor, cross-examined the People's witnesses,made numerous timely objections and presented cogent opening and closing statements.Accordingly, "despite any isolated and discrete shortcomings in counsel['s] . . .performance[ ], we are satisfied that defendant received meaningful representation" (People v Goldston, 126 AD3d1175, 1179 [2015], lv denied 25 NY3d 1201 [2015]; see People v Every, 146 AD3d1157, 1166 [2017]).
Finally, given defendant's prior felony conviction, his apparent lack of remorse and the brutalnature of the crimes, we find no abuse of discretion or extraordinary circumstances that wouldwarrant modification of defendant's sentence (see e.g. People v Winchell, 129 AD3d 1309, 1313 [2015], lvdenied 26 NY3d 973 [2015]; Peoplev Vanderhorst, 117 AD3d 1197, 1201-1202 [2014], lv denied 24 NY3d 1089[2014]). As such, the imposition of the maximum sentence was neither harsh nor excessive.
Egan Jr., J.P., Devine and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:In a separate trial, Taylor wasconvicted of murder in the second degree, gang assault in the first degree and criminal possessionof a weapon in the third degree and, upon appeal, we affirmed the judgment of conviction (People v Taylor, 134 AD3d 1165[2015], lv denied 26 NY3d 1150 [2016]). In addition, following a trial, Denno wasconvicted of manslaughter in the first degree and gang assault in the first degree.