| People v Anatriello |
| 2018 NY Slip Op 03564 [161 AD3d 1383] |
| May 17, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Timothy J. Anatriello Jr., Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered November 26, 2014, upon a verdict convicting defendant of the crimes of coercion inthe first degree, criminal possession of a weapon in the fourth degree and reckless endangermentin the second degree.
One evening in December 2013, defendant's then-girlfriend (hereinafter the victim) arrived atthe two-story residence that she shared with defendant, his sister and his father. When the victimspoke by telephone with defendant, who was not then at home, he demanded that she not leavethe house. Approximately one-half hour later, defendant arrived home, kicked open the door totheir upstairs bedroom, where the victim was waiting, and began to strike her head with a closedfist while holding a knife in his other hand. During defendant's attack on the victim, defendant'sfather, who was on the first floor, called to defendant from the bottom of the stairs to ask whatwas happening and, in response, defendant stated that the victim was "going to die" that night.Defendant continued to strike the victim and choked her before ultimately stabbing her threetimes with the knife. When defendant went downstairs to obtain a rifle, the victim called 911.Upon returning to the bedroom, defendant taunted the victim with the gun by pointing it in herface and telling her that she would never again see her son. Defendant then went outside, armedwith the knife and the rifle, but retreated to the inside of the home almost immediately afternoticing that the police were present. Defendant returned to the second floor and the gundischarged as defendant stood at the top of the stairs. The victim eventually escaped from thehome and defendant surrendered [*2]to the police several hourslater.
Defendant was thereafter charged by indictment with kidnapping in the second degree,assault in the second degree, criminal possession of a weapon in the third degree, coercion in thefirst degree, strangulation in the second degree, criminal possession of a weapon in the fourthdegree, reckless endangerment in the second degree and menacing a police officer. After a jurytrial, defendant was convicted of coercion in the first degree, criminal possession of a weapon inthe fourth degree and reckless endangerment in the second degree.[FN1] County Court sentenced defendant, as a secondfelony offender, to an aggregate prison term of 2 to 4 years and issued a no-contact order in favorof the victim. Defendant appeals.
Defendant argues that the evidence was legally insufficient to convict him of coercion in thefirst degree and reckless endangerment in the second degree and, further, that his convictions onthese charges were against the weight of the evidence. "When considering a challenge to the legalsufficiency of the evidence, we view the evidence in the light most favorable to the People andevaluate whether there is any valid line of reasoning and permissible inferences which could leada rational person to the conclusion reached by the jury on the basis of the evidence at trial and asa matter of law satisfy the proof and burden requirements for every element of the crime charged.Moreover, in assessing the weight of the evidence, where, as here, a different verdict would nothave been unreasonable, this Court must, like the trier of fact below, weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People vRobinson, 156 AD3d 1123, 1124-1125 [2017] [internal quotation marks and citationsomitted], lv denied 30 NY3d 1119 [2018]). In conducting a weight of the evidenceanalysis, we must give deference to the jury's credibility assessments (see People v Williams, 156 AD3d1224, 1226 [2017]).
With regard to his conviction for coercion in the first degree, defendant contends that therewas insufficient evidence establishing that he compelled the victim to remain in the home bythreatening to kill her or by physically preventing her from leaving. As relevant here, "[a] personis guilty of coercion in the first degree when [such person] commits the crime of coercion in thesecond degree, and when . . . [h]e or she commits such crime by instilling in thevictim a fear that he or she will cause physical injury to [the victim]" (Penal Law§ 135.65 [1]). "A person is guilty of coercion in the second degree when he or shecompels or induces a person to engage in conduct which the latter has a legal right to abstainfrom engaging in, or to abstain from engaging in conduct in which he or she has a legal right toengage . . . by means of instilling in [the victim] a fear that, if the demand is notcomplied with, the actor . . . will . . . [c]ause physical injury to aperson" (Penal Law § 135.60 [1]).
It was undisputed that defendant demanded that the victim not leave their home, that hepinned her down and punched her several times with a closed fist, choked her, stabbed her threetimes with a knife, verbally called her derogatory names, threatened her by stating that she wouldnever again see her son while pointing a gun in her face and discharged the gun in the house. Thevictim testified that defendant refused her requests that he permit her to leave thehome—telling her that she would need to wait until the next day to seek medical attentionfor her stab wounds—and that she did not leave the home because she was unsure wherehis knife was and did not want to "escalate" the situation. Viewing the evidence in the light mostfavorable to the [*3]People, the evidence was legally sufficient toprove that defendant committed coercion in the first degree by compelling the victim to remain inthe home by instilling the fear that he would physically injure her if she attempted to leave.Moreover, although an acquittal on this charge would not have been unreasonable, when we viewthe same evidence in a neutral light and defer to the jury's credibility assessments, we find thatdefendant's conviction for coercion in the first degree was not against the weight of theevidence.
Defendant also contends that his reckless endangerment conviction was not supported bylegally sufficient evidence. "A person is guilty of reckless endangerment in the second degreewhen he recklessly engages in conduct which creates a substantial risk of serious physical injuryto another person" (Penal Law § 120.20). It is undisputed that the gun was firedfrom a location near the top of the stairs on the second floor and that the bullet traveleddownward through the ceiling of the first floor bathroom. The victim testified that she was in theadjacent bedroom when the gun was fired and that defendant's father was on the first floor.Defendant's father testified that he was on the second floor attempting to convince defendant tosurrender the weapon when it fired. Defendant argues that the discharge of the gun could nothave posed a substantial risk of serious physical injury to anyone based on the testimony thatthere was no one on the first floor when the shot was fired and, further, that there was no proofthat he fired the gun with the requisite intent. Viewing this evidence in the light most favorable tothe People, we find that it is legally sufficient to support defendant's conviction for recklessendangerment in the second degree. The victim's testimony that defendant's father was on thefirst floor placed him in the general path of the bullet and, therefore, at substantial risk of injury.Moreover, defendant's discharge of the gun also created the substantial risk that the victim anddefendant's father—even if he was standing on the second floor neardefendant—could have been injured by a ricocheting bullet or by a sudden movement intothe path of the bullet (see People vByrd, 79 AD3d 1256, 1257 [2010]; People v Graham, 14 AD3d 887, 889 [2005], lv denied 4NY3d 853 [2005]). With respect to intent, the victim's testimony that defendant was alone whenthe gun discharged is a sufficient basis for inferring that defendant intentionally fired the weapon.Moreover, although an acquittal on this charge would not have been unreasonable, when we viewthe same evidence in a neutral light and defer to the jury's credibility assessments, we find thatthe conviction for reckless endangerment in the second degree was not against the weight of theevidence.
Defendant next argues that County Court committed reversible error when it denied hisrequest to charge him with coercion in the second degree as a lesser included offense of coercionin the first degree. "To establish entitlement to a lesser included offense charge, a defendant mustdemonstrate that, in all circumstances, it is impossible to commit the greater crime withoutconcomitantly, by the same conduct, committing the lesser offense and, secondarily, that there isa reasonable view of the evidence that would support a finding that he or she committed thelesser offense but not the greater" (People v Luciano, 152 AD3d 989, 994 [2017] [internal quotationmarks, brackets and citations omitted], lv denied 30 NY3d 1020 [2017]). In determiningwhether defendant was entitled to the lesser included charge of coercion in the second degree,"we must view the evidence in the light most favorable to the defendant" (id. at 995[internal quotation marks and citation omitted]).
The Court of Appeals has "recognized that the crimes of coercion in the first and seconddegree are identical when the coercion is committed by instilling a fear that a person will bephysically injured or that property will be damaged" (People v Finkelstein, 28 NY3d 345, 348 [2016] [internal quotationmarks and citation omitted]). It explained, however, "that the felony of coercion in the firstdegree [must] be charged whenever the method of coercion was to instill a fear of injury to aperson or damage to property" (id. at 348-349 [internal quotation marks, ellipsis andcitation omitted]). As such, the Court continued, "second-degree coercion should be charged as a[*4]lesser included offense only in the unusual factual situation inwhich the coercion by threat of personal or property injury lacks the heinousness ordinarilyassociated with this manner of commission of the crime . . . [, i.e., where] thethreatened physical injury is not truly fearsome" (id. at 349 [internal quotation marks andcitation omitted]). This case does not present one of those unusual factual situations that wouldjustify charging coercion in the second degree as a lesser included offense in light of the evidenceshowing that defendant threatened to kill the victim, pinned her to the ground with his body,choked her, stabbed her three times with a knife and threatened that she would never again seeher son while holding a gun in her face. Thus, County Court properly denied defendant's motionto charge the lesser included offense of coercion in the second degree.[FN2]
Finally, defendant argues that County Court erred when it permitted police officers to testify,over his objection, regarding his refusal to communicate with them while he remained in thehome after the victim left, the various efforts made by the police to induce defendant to vacatethe residence, his refusal to exit until they fired tear gas into the home and his refusal tocommunicate with them after he surrendered. Assuming, without deciding, that the testimonyregarding defendant's interaction with the police was not relevant to commission of the crimeswith which he was charged or necessary to complete a coherent narrative of the relevant events,we nonetheless conclude that any error in admitting such testimony was harmless beyond areasonable doubt because there was no reasonable possibility that the error might havecontributed to defendant's conviction (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Gray, 151 AD3d1470, 1472 [2017], lv denied 30 NY3d 949 [2017], cert denied 583 US&mdash, 138 S Ct 1295 [2018]; People v Sprague, 267 AD2d 875, 880 [1999], lvdenied 94 NY2d 925 [2000]).
Garry, P.J., Egan Jr., Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The kidnapping charge wasdismissed at the close of the People's case-in-chief and defendant was acquitted of the remainingcharges.
Footnote 2:Defendant concedes that hisargument that County Court erred by making a factual determination that his conduct washeinous was not preserved for our review (see People v Finkelstein, 28 NY3d at 348),and, in the light of the nature of his conduct, we decline his request that we exercise our interestof justice jurisdiction to take corrective action.