| People v Ford |
| 2017 NY Slip Op 09202 [156 AD3d 1242] |
| December 28, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Cory Ford, Appellant. |
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the County Court of Schenectady County (MurphyIII, J.), rendered March 30, 2015, upon a verdict convicting defendant of the crimes of assault inthe first degree, aggravated assault on a peace officer and assault in the second degree (twocounts), and (2) from a judgment of said court, rendered August 19, 2015, which resentenceddefendant on his convictions of assault in the second degree (two counts).
Defendant, an inmate in a local correctional facility, was being escorted from the recreationarea (hereinafter rec area) when he instigated a physical altercation with two correction officers.During the ensuing struggle, defendant allegedly struck one of the correction officers (hereinafterthe victim) in the head with a water jug, causing the victim to lose consciousness. As a result,defendant was charged by indictment with assault in the first degree, aggravated assault on apeace officer and assault in the second degree (two counts). Following a jury trial, defendant wasconvicted as charged. He was subsequently sentenced, as a second felony offender, to concurrentprison terms, the greatest of which was 20 years, followed by five years of postreleasesupervision. Defendant now appeals.[FN*]
[*2] Defendant contends that the verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence. Although defendant failed to preserve his legal sufficiencyclaim (see People v Anthony, 152AD3d 1048, 1053 [2017], lv denied 30 NY3d 978 [2017]; People v Place, 152 AD3d 976,977 [2017]), "our weight of the evidence review includes an evaluation as to whether theelements of the crimes for which defendant was convicted were proven beyond a reasonabledoubt" (People v Spencer, 152AD3d 863, 863 [2017] [internal quotation marks, brackets and citation omitted], lvdenied 30 NY3d 983 [2017]; seePeople v Odofin, 153 AD3d 972, 974 [2017]). "Where, as here, an acquittal would nothave been unreasonable, we must 'weigh conflicting testimony, review any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions' " (People v Stacconi, 151 AD3d1395, 1396 [2017], quoting Peoplev Danielson, 9 NY3d 342, 348 [2007] [citation omitted]).
As charged here, a defendant is guilty of assault in the first degree when, "[w]ith intent tocause serious physical injury to another person, he [or she] causes such injury to such person" bymeans of a dangerous instrument (Penal Law § 120.10 [1]). A defendant is guilty ofaggravated assault on a peace officer "when, with intent to cause serious physical injury to aperson whom [the defendant] knows or reasonably should know to be a . . . peaceofficer engaged in the course of performing his [or her] official duties, [the defendant] causessuch injury by means of a . . . dangerous instrument" (Penal Law§ 120.11). As relevant to these charges, "serious physical injury" is defined asphysical injury which causes "protracted impairment of health" (Penal Law § 10.00[10]). Concerning the two counts of assault in the second degree, pursuant to Penal Law§ 120.05 (3), a defendant is guilty of this crime when, with intent to prevent a peaceofficer from performing a lawful duty, he or she causes injury to the peace officer. Pursuant toPenal Law § 120.05 (7), a defendant is also guilty of assault in the second degreewhen, "[h]aving been charged with or convicted of a crime and while confined in a correctionalfacility," he or she intended to cause physical injury to another person and does cause suchinjury.
The proof established that, on the day of the incident, the victim was on duty and in charge oftransporting defendant to the rec area when defendant refused the victim's command to stoptalking. The victim then informed defendant that he would have to go back to his floor, and averbal altercation ensued. Anthony Massaro, a correction officer who was leaving thecorrectional facility for the day and was carrying a water jug, overheard defendant swearing at thevictim and stepped in to assist the victim. According to Massaro, while he and the victim wereescorting defendant away from the rec area, defendant suddenly turned toward them in an"aggressive" manner with his hands raised in the air. At that point, Massaro let go of his waterjug and used a takedown technique to put defendant on the ground. All three ended up on theground, while defendant fought off efforts by Massaro and the victim to restrain him anddisregarded their commands to stop resisting. Massaro testified that, despite his efforts,defendant was able to reach the water jug with his left hand and strike the victim with it "at leasta couple of times." For his part, defendant presented the testimony of three inmate witnesses whoeach disputed Massaro's account and stated that the victim instigated the encounter by grabbingdefendant and throwing him to the ground. According to the inmate witnesses, at no point diddefendant strike the victim.
[*3] As to the proofregarding the victim's injuries, the victim testified that when he was hit in the head, heexperienced a high level of pain and he passed out and did not regain consciousness until afterthe incident had subsided. Adam Sheldon, a correction officer who responded to the scene whilethe altercation was still ongoing, testified that he found the victim unconscious on the floor.When the victim regained consciousness, Sheldon asked him questions, which were met with"blank stares." The victim was ultimately transported to a nearby hospital, where he wasdiagnosed with a contusion, hematoma and swelling on the right side of his head, a closed headinjury and postconcussive syndrome. The uncontroverted medical proof established that, as aresult of these injuries, the victim suffers from posttraumatic stress disorder and has continued toexperience cognitive disturbances, including memory loss, pain on the right side of his head,chronic headaches, ringing in his ears, sleeping issues and psychiatric disturbances, such asdepression and anxiety. The victim's treating psychologist opined at trial—almost a yearafter the assault—that, as a result of the victim's continued symptoms, he was still notready to return to work.
After viewing the foregoing evidence in a neutral light and according deference to the jury'scredibility determinations (see People vByrd, 152 AD3d 984, 986 [2017]), we are satisfied that each element of the chargedcrimes was established beyond a reasonable doubt (see generally People v Danielson, 9NY3d at 348-349). In reaching this conclusion, we reject defendant's contention that the evidencefailed to establish that the victim sustained a "serious physical injury"—as required to findhim guilty of assault in the first degree and aggravated assault on a peace officer—in lightof the ample testimony concerning the myriad of symptoms that the victim was still experiencingat the time of trial as a result of his injuries (see Penal Law § 10.00 [10]; cf. People v Casey, 61 AD3d 1011,1013 [2009], lv denied 12 NY3d 913 [2009]; compare People v Stewart, 18 NY3d 831, 832-833 [2011]; People v Daniels, 97 AD3d 845,847 [2012], lv denied 20 NY3d 931 [2012]; People v Gray, 30 AD3d 771, 772-773 [2006], lv denied 7NY3d 848 [2006]). Contrary to defendant's contention, the evidence also established that thevictim was performing his official and lawful duties at the time that the incident occurred(see Penal Law §§ 120.11, 120.05 [3]; see People v Dancy, 87 AD3d 759,760-761 [2011]; compare People vTucker, 141 AD3d 748, 751 [2016]). Although defendant also argues that Massaro'saccount of what transpired was not believable, any discrepancies in Massaro's testimony wereexplored at trial and "posed credibility questions for the jury to resolve" (People v Malak, 117 AD3d 1170,1174 [2014], lv denied 24 NY3d 1086 [2014]; accord People v Wells, 141 AD3d 1013, 1023 [2016], lvdenied 28 NY3d 1189 [2017]; seePeople v Bautista, 147 AD3d 1214, 1216 [2017]).
We reject defendant's contention that County Court abused its discretion in itsSandoval ruling. Prior to trial, the People sought to impeach defendant with evidence of29 prior convictions and bad acts in the event that he elected to testify. During theSandoval hearing, County Court thoroughly examined each of the convictions and badacts, precluded inquiry into 21 of them and placed limitations on the extent of the People'sinquiry as to most of the remaining eight convictions and bad acts. Given County Court's carefulanalysis and the restrictions it placed to limit the potential for prejudice, we find no abuse ofdiscretion (see People v Watson,150 AD3d 1384, 1387 [2017], lv denied 29 NY3d 1135 [2017]; People v Iovino, 149 AD3d 1350,1353-1354 [2017], lv denied 30 NY3d 950 [2017]; People v Lee, 129 AD3d 1295, 1298 [2015], lv denied 27NY3d 1001 [2016]).
Defendant also challenges County Court's Molineux ruling, which permitted thePeople to introduce evidence of an incident between defendant and the victim that occurred themorning of the assault and an incident between defendant and another correction officer thatoccurred 15 days prior to the assault. Upon our review of the record, we find that County Courtproperly [*4]permitted the People to introduce evidence of thesetwo incidents inasmuch as they each provided necessary background information, establisheddefendant's motive and intent to commit the assault and were more probative than prejudicial (cf. People v Burnell, 89 AD3d1118, 1120-1121 [2011], lv denied 18 NY3d 922 [2012]; see generally People v Morris, 21NY3d 588, 594-595 [2013]). Moreover, we note that County Court provided appropriatelimiting instructions regarding this evidence (see People v Anthony, 152 AD3d at 1051;People v Womack, 143 AD3d1171, 1174 [2016], lv denied 28 NY3d 1151 [2017]). Contrary to defendant's relatedcontention, the People did not improperly expand the court's Molineux ruling at trial.
Finally, we find preserved for our review defendant's claim that the sentence imposed was inretaliation for exercising his constitutional right to trial in that it was longer than the People'spretrial plea offer (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Luciano, 152 AD3d 989,995 [2017], lv denied 30 NY3d 1020 [2017]; People vMartinez, 144 AD3d 1326, 1326 [2016], lv denied 28 NY3d 1186 [2017]). Inany event, at sentencing, County Court noted that, at the time that the plea offers were discussed,the court was unaware of the "life-altering" circumstances that the assault had on the victim. Inlight of this, coupled with County Court's discussion of the relevant sentencing factors that it hadconsidered, we find that defendant's claim is refuted by the record (see People vMartinez, 144 AD3d at 1327; People v Major, 143 AD3d 1155, 1160 [2016], lv denied 28NY3d 1147 [2017]).
Defendant's remaining contentions, to the extent not expressly addressed herein, have beenconsidered and determined to be lacking in merit.
Garry, J.P., Egan Jr., Mulvey and Rumsey, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *:After being advised that anincorrect period of postrelease supervision had been imposed on both counts of assault in thesecond degree, County Court resentenced defendant on those counts. Although defendant filed anotice of appeal from that judgment, he does not raise any issue with respect to the resentencing.