| People v Garland |
| 2017 NY Slip Op 08302 [155 AD3d 527] |
| November 28, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Tamarkqua Garland, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (James Wen of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered May 8, 2015,convicting defendant after a jury trial, of two counts of assault in the first degree and one countof criminal possession of a weapon in the second degree, and sentencing him, as a second violentfelony offender, to an aggregate term of 14 years, affirmed. Judgment, same court (Peter J.Benitez, J. at suppression hearing; Lester Adler, J. at plea and sentencing), rendered March 2,2016, convicting defendant upon his plea of guilty, of attempted criminal possession of acontrolled substance in the fourth degree, and sentencing him to a concurrent term of1
With regard to the trial conviction, the court properly denied defendant's speedy trial motion.Defendant did not meet his burden of demonstrating that the People's statement of readiness,which is "presumed truthful and accurate," was illusory (People v Brown, 28 NY3d 392, 405 [2016]). The record supportsthe reasonable inference that the prosecutor had reestablished contact with the complainant at thetime that he filed the off-calendar statement of readiness.
The court properly denied defendant's suppression motion. As to the warrantless arrest ofdefendant, the People showed that the officers had obtained voluntary consent to enter theapartment from a person with the requisite authority (see People v Cosme, 48 NY2d 286,290 [1979]). Neither the testimony of defendant nor the testimony of the detective gives rise toan inference that the person had submitted to coercion by the police (see People vGonzalez, 39 NY2d 122, 128 [1976]).
Accepting the hearing court's credibility determinations (see People v Prochilo, 41NY2d 759 [1977]), the People also met their burden of demonstrating that defendant waived hisMiranda rights and made the written statement voluntarily. The court properly permittedthe People to cross-examine defendant on the substance of the written statement, as defendantopened the door to the inquiry by testifying on direct examination that the detective interrogatinghim had rejected his initial statement and coerced him into writing the subsequent inculpatorystatement (see People v Darrett, 2AD3d 16, 20-21 [1st Dept 2003]; People v Huntley, 46 Misc 2d 209, 211-212 [SupCt, NY County 1965], affd 27 AD2d 904 [1st Dept 1967], affd 21 NY2d 659[1967]).
The verdict was supported by legally sufficient evidence and was not against the weight ofthe evidence (see People vDanielson, 9 NY3d 342, 348 [2007]). The element of serious physical injury (Penal Law§ 10.00 [10]) required for the assault convictions (Penal Law § 120.10[1], [3]) was established by evidence showing that four years after the complainant was struck bya bullet, he still felt pain and the bullet fragments in his leg and could not engage in sports at thesame level as before the incident. This proof sufficiently shows a protracted impairment of healthor protracted impairment of the function of a bodily organ to support a [*2]finding of serious physical injury (see Penal Law§ 10.00 [10]; People vRosa, 112 AD3d 551 [1st Dept 2013], lv denied 22 NY3d 1202 [2014]; People v Messam, 101 AD3d 407[1st Dept 2012], lv denied 20 NY3d 1102 [2013]; People v Corbin, 90 AD3d 478, 479 [1st Dept 2011], lvdenied 19 NY3d 972 [2012]). Defendant's intent to cause such injury (Penal Law§ 120.10 [1]) is established by his written statement admitting that he fired the gunfive times into a crowd of people (see People v Hernandez, 233 AD2d 273 [1st Dept1996], lv denied 89 NY2d 986 [1997]). His written confession also establishes theelement of possession of a loaded firearm required for the weapon possession conviction(see Penal Law § 265.03 [3]).
By failing to object to any of the alleged prejudicial comments by the prosecutor, defendantfailed to preserve his challenges to the People's summation (see People v Flagg, 149 AD3d 513, 514-515 [1st Dept 2017], lvdenied 29 NY3d 1079 [2017]), and we decline to review them in the interest of justice. As analternative holding, we find no basis for reversal. The bulk of the challenged remarks were eitherfair response to defense counsel's arguments on summation or fair comment on the evidence, andany improprieties were not so egregious as to deprive defendant of a fair trial (see People vD'Alessandro, 184 AD2d 114 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).
Regarding defendant's plea conviction, the record shows that defendant's waiver of his rightto appeal was not knowing, intelligent and voluntary. Moreover, the waiver contains languagethat has been found by this Court to render a waiver unenforceable (see People v Powell, 140 AD3d401 [1st Dept 2016], lv denied 28 NY3d 1074 [2016]). Nevertheless, defendant'schallenge to the suppression ruling is unpreserved, and we decline to review it in the interest ofjustice. As an alternative holding, we reject it on the merits. Since we do not find the officer'stestimony to be manifestly untrue, contrary to common experience, self-contradictory, or tailored,we decline to disturb the court's conclusion that the testimony was credible (see People vSanchez, 248 AD2d 306 [1st Dept 1998], lv denied 92 NY2d 930 [1998]; Peoplev Jordan, 242 AD2d 254, 255 [1st Dept 1997], lv denied 91 NY2d 875 [1997]). Theofficer's testimony that, while apprehending another individual, he saw defendant sitting on thestairs with a scale and drugs supports the court's finding of probable cause to arrest defendant andseize the drugs. Concur—Mazzarelli, Moskowitz, Kahn and Kern, JJ.
Manzanet-Daniels, J.P., dissents in part in a memorandum as follows: In my view, theevidence at trial was legally insufficient to establish the element of "serious physical injury,"defined as "physical injury which creates a substantial risk of death, or which causes death orserious and protracted disfigurement, protracted impairment of health or protracted loss orimpairment of the function of any bodily organ" (Penal Law § 10.00 [10]), and theconvictions for assault in the first degree under Penal Law §§ 120.10 (1) and(3) should be reversed.
The charges stem from an incident on the evening of October 9, 2010, when, during a streetbrawl, defendant shot a gun multiple times toward a group of people, and struck 15-year-oldbystander Lloyd B. in the leg.
Lloyd testified that after being shot, he returned to his apartment building. He initiallythought he had been struck with a BB gun because "the bullet hole was so little." Later on thatday, he went to the hospital, where police officers informed him that he had been shot with a gun.He reiterated that he hadn't realized, since the "[bullet] hole [wa]s so little," explaining that it"didn't even look like a bullet hole. I didn't know what it was." Lloyd received a tetanus shot andantibiotics at the hospital, but no pain medication. He initially rated his pain a 7 out of 10; twohours later, he rated his pain 0 out of 10. He did not undergo surgery. X rays showed no fracturesor neurovascular damage. He denied any numbness, tingling or motor deficit, indicators that hehad not suffered any acute damage.
Lloyd has retained bullet fragments within the left thigh; there was no evidence that thefragments caused any damage or endangered his life in any way. The People's expert testified[*3]that the fragments were "maybe" in the vicinity of the femoralartery. She explained that in trauma situations it was protocol to leave such fragments in anextremity so as not to cause possible further damage.
The People's expert was provided with no records beyond 2010, and thus was unable to opineas to whether Lloyd had a permanent disability.
Lloyd used crutches intermittently for a period of two months following the shooting. He hassince resumed an active lifestyle. Although he once played on the football team, he now plays ona recreational basis. He testified that four years after the incident, he still had what hecharacterized as "little problems," such as soreness at night and "[w]hen it rains." He maintainedat trial that he could feel the bullet fragments in his leg.
Lloyd was never in serious apprehension of death within the meaning of the statute, nor doesthe prosecution contend as much. Rather, the prosecution maintains that he suffered "serious and. . . protracted impairment of health" because he used crutches for two months, hasintermittent pain, and has bullet fragments lodged near his femoral artery.
These are not bases for finding that Lloyd suffered "serious physical injury" as contemplatedin the statute. The temporary use of crutches does not indicate "serious physical injury" (see People v Ham, 67 AD3d 1038,1040 [3d Dept 2009] [conclusory assertion of use of crutches, pain medication, and physicaltherapy by gunshot victim did not support finding of "serious physical injury"]). Slight pain uponexertion or while running does not constitute "serious physical injury" (see People v Daniels, 97 AD3d845, 847 [3d Dept 2012] [sore knee once in a while insufficient, where victim was able toresume playing soccer], lv denied 20 NY3d 931 [2012]), nor do complaints ofintermittent pain associated with the weather (see People v Castillo, 199 AD2d 276 [2dDept 1993]). Lloyd does not experience "persistent pain so severe as to cause protractedimpairment of health" (People vRomero, 147 AD3d 1490, 1491-1492 [4th Dept 2017], lv denied 29 NY3d 1036[2017]).
There is no proof of injury connected to the bullet fragments, nor is there proof that Lloyd'slife was endangered by the presence of the fragments (compare People v Horton, 9 AD3d 503, 505 [3d Dept 2004], lvdenied 3 NY3d 707 [2004] [no "serious physical injury" where surgeon declined to removebullet fragments lodged near the spinal cord], with People v Walker, 279 AD2d 696,697-698 [3d Dept 2001], lv denied 96 NY2d 869 [2001] [finding "serious physicalinjury" where a bullet fragment near the victim's spine had in fact caused paralysis andlife-threatening injury and necessitated long-term rehabilitation]). Notably, the People's expertwas unable to opine as to whether Lloyd had suffered permanent deficits associated with theinjury.
The fact that Lloyd suffered a gunshot wound does not ipso facto establish that he suffered a"serious physical injury" (see e.g. Peoplev Ekwegbalu, 131 AD3d 982, 984 [2d Dept 2015], lv denied 26 NY3d 1108[2016]).
Because I dissent on the above basis, I express no opinion concerning the proper remedy forthe People's failure to establish the "serious physical injury" element of assault,[FN*] or any of the other argumentsadvanced by defendant on appeal.
Footnote *:Proper remedies might includereducing the conviction to a lesser included offense (see Romero, 147 AD3d at 1491;People v Snipes, 112 AD2d 810 [1st Dept 1985]).