| People v King |
| 2018 NY Slip Op 04393 [162 AD3d 1228] |
| June 14, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Unique King, Appellant. |
Carolyn B. George, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County (Murphy III,J.), rendered September 9, 2015, upon a verdict convicting defendant of the crimes of assault inthe second degree, attempted assault in the second degree and criminal possession of stolenproperty in the fifth degree.
Defendant was indicted on charges stemming from his role in affrays at a house party in theCity of Schenectady, Schenectady County and their aftermath. Following a jury trial, he wasconvicted of assault in the second degree, attempted assault in the second degree and criminalpossession of stolen property in the fifth degree. County Court sentenced him, as a second felonyoffender, to an aggregate prison term of seven years to be followed by postrelease supervision offive years, and he now appeals.[FN*]
We affirm. Defendant argues that the verdict was not supported by legally sufficient evidencebut, having failed to renew his motion for a trial order of dismissal at the close of all [*2]proof, that challenge is unpreserved (see People v Williams, 156 AD3d1224, 1225 [2017], lv denied 31 NY3d 1018 [2018]; People v Odofin, 153 AD3d 972,974 [2017]). He also contends that the verdict was against the weight of the evidence, an analysisthat requires us to evaluate whether the elements of the crimes were proven beyond a reasonabledoubt (see People v Rosario, 157AD3d 988, 989 [2018]; People v Williams, 156 AD3d at 1225). In that regard,assuming that "an acquittal would not have been unreasonable," we will "weigh conflictingtestimony, review any rational inferences that may be drawn from the evidence and evaluate thestrength of such conclusions . . . [to] decide[ ] whether the jury was justified infinding the defendant guilty" (People vDanielson, 9 NY3d 342, 348 [2007]; accord People v Kancharla, 23 NY3d 294, 303 [2014]; seePeople v Rosario, 157 AD3d at 989).
The area around the house descended into chaos on the night of the party, and that chaos wasdetailed in testimony from the two victims, Cameron Wynn and Liam Munro, as well as that ofdefendant and other attendees. As is relevant here, Munro testified that he was dragged down andattacked by multiple people, whom he was unable to identify, after he attempted to break up afight involving one of his friends. Wynn was outside investigating the "ruckus" and testified toseeing Munro, a friend and former classmate, lying against the tire of a sport utility vehicle andbeing "viciously stomp[ed]" in the head by defendant and kicked in the body by another man.Wynn intervened and tried to pull defendant away from Munro, at which point several menattacked Wynn as well. A free-for-all ensued in which, according to Wynn, defendant repeatedlystruck him in the head with a handgun and caused him to bleed profusely. These attacks causedinjuries to both Munro and Wynn that were far from trivial, which both men described in detailand explained how they led to prolonged difficulties and discomfort.
Wynn realized, as he was preparing to leave the party to seek medical attention, that hiscellular phone and wallet were missing. One of his friends called the phone to request its returnand was rebuffed by the man who answered. The authorities were summoned after Wynn arrivedat the hospital, and police, relying upon tracking information from a locator app, went todefendant's residence and found him in possession of Wynn's phone. Police further noteddefendant's sport utility vehicle parked outside and observed what was later identified to beWynn's blood on it.
It is true that Wynn's account varied somewhat over time and that Munro believed a whiteman—which defendant is not—was one of his attackers. Defendant also testified inhis own defense and denied taking part in the fights or receiving a call demanding the return ofWynn's phone. That being said, defendant acknowledged that he was at the party with his vehicleand that he found Wynn's phone and intended to keep it. Defendant's account was further calledinto question by his acknowledgment that he had hatched a plot to bribe Wynn into silence, aswell as the testimony of a partygoer who observed defendant fighting in the manner described byWynn. The host of the party also testified as to his conversation with defendant in whichdefendant stated that he had "cracked some kid in the head pretty bad" and gotten caught becausehe took "a kid's cell phone" that was traced to him. The jury could readily credit the proof ofdefendant's involvement in the charged acts to find that he had committed assault in the seconddegree by pistol whipping Wynn with the realized intent of causing physical injury (seePenal Law § 120.05 [2]; see e.g. People v Romero, 147 AD3d 1490, 1491-1492 [2017],amended on rearg 148 AD3d 1726 [2017], lv denied 29 NY3d 1036 [2017]),attempted assault in the second degree by "viciously" stomping Munro in the head with theunrealized intent of causing serious physical injury (see Penal Law§§ 110.00, 120.05 [1]; People v Miller, 290 AD2d 814, 815 [2002],lv denied 98 NY2d 678 [2002]) and criminal possession of stolen property in the fifthdegree by taking someone else's phone and intending to keep it for his own use despite a demandfor its return (see Penal Law §§ 155.05 [2] [b]; 165.40; People v Guarino, 55 AD3d 473,[*3]474 [2008], lv denied 11 NY3d 925 [2009]). Thus,deferring to the jury's ability to view the witnesses and assess their credibility (see People vKancharla, 23 NY3d at 303; People v Bleakley, 69 NY2d 490, 495 [1987]), wecannot say that the verdict was against the weight of the evidence.
Finally, in view of defendant's criminal record and the nature of the present offenses, we donot perceive an "abuse of discretion or extraordinary circumstances warranting a modification" ofthe sentences imposed (People vTaylor, 134 AD3d 1165, 1170 [2015], lv denied 26 NY3d 1150 [2016]; see People v Ferrer, 115 AD3d1113, 1114 [2014]).
Lynch, J.P., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant was later resentencedon his conviction for attempted assault in the second degree. The resentencing had no impactupon the aggregate sentence, and he does not appeal from that judgment.