| People v Hernandez |
| 2018 NY Slip Op 07196 [165 AD3d 1473] |
| October 25, 2018 |
| Appellate Division, Third Department |
[*1](October 25, 2018)
| The People of the State of New York,Respondent, v Norberto Hernandez, Appellant. |
Amanda FiggsGanter, Albany, for appellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered May 20, 2012, convicting defendant following a nonjury trial of the crimes of assault inthe first degree and criminal possession of a weapon in the fourth degree.
After a December 2010 altercation in which the victim was stabbed, defendant was chargedwith assault in the first degree and criminal possession of a weapon in the fourth degree. Aspertinent here, defendant asserted the defense of justification. Following a nonjury trial, he wasconvicted as charged and sentenced to a prison term of 7
Defendant asserts that his convictions are not supported by legally sufficient evidence and areagainst the weight of the evidence on several grounds, including a claim that the People failed todisprove his justification defense beyond a reasonable doubt. As a preliminary matter,defendant's legal sufficiency challenge is unpreserved, as his general motion for a trial order ofdismissal was not specifically directed at any of the alleged errors (see People v Gray, 86NY2d 10, 19 [1995]; People vPerillo, 144 AD3d 1399, 1400 [2016], lv denied 29 NY3d 951 [2017]).Nevertheless, as part of this Court's weight of the evidence review, "we necessarily determinewhether the elements of the crime[s] were proven beyond a reasonable doubt and whether thejustification defense was disproven" (People v Vanderhorst, 117 AD3d 1197, 1198 [2014], lvdenied 24 NY3d 1089 [2014]; seegenerally People v Danielson, 9 NY3d 342, 349 [2007]). "[T]he appropriate standard forevaluating a weight of the evidence argument on appeal is the same regardless of whether thefinder of fact was a judge or a jury" (People v Race, 78 AD3d 1217, 1219-1220 [2010] [internalquotation marks and citation omitted], lv denied 16 NY3d 835 [2011]; accord People v Crosby, 151 AD3d1184, 1185 [2017]).
The trial evidence established that defendant and his estranged wife had separated a fewmonths before the incident and that the victim and the wife were in a romantic relationship thathad begun before the separation. These three individuals, who were the only witnesses to the[*2]altercation, gave sharply conflicting accounts of the event.The victim testified that he had never previously met defendant and had seen him only oncebefore the incident. On Christmas Eve, he drove a car that he had borrowed from a mutual friendto the mall, where he met the wife to do some last minute holiday shopping. They visited severalstores, where the wife shopped for a gift for her daughter. After she purchased the gift, the victimtransported her to a restaurant where she was scheduled to work an evening shift. At the wife'sworkplace, the victim saw a parked red car. When he opened the door to help the wife with herpurchases, the red car moved and blocked his car. The driver, who proved to be defendant,emerged and told the victim that he wanted to see him. The victim responded that he had nothingto talk with defendant about. He testified that he was helping the wife unload shopping bags fromthe vehicle when defendant "jumped on top of [him]," started hitting him and threw him to theground, where the two men wrestled with each other. While they struggled, the victim was "hit"with "something," causing him to grab the area of his left upper chest, where he felt a laceration.Defendant "went on top of [the victim] again" and they continued to fight. The victim assertedthat he heard defendant say that he wanted to "take [his] eye out" and that he was going to kill thevictim. As they struggled, defendant inflicted wounds on the victim's face, hand and head. Thevictim said that defendant then went to his car and left while the victim remained lying on thepavement, and that, at some point, defendant returned briefly, apparently to get something, andthen left again. The victim said that the object that cut him was a "thing with a blade" about fourinches long. Photographs of his injuries, including a wound to the left chest and multiplelacerations on the face, head and hand, were admitted into evidence along with the victim'smedical records. The victim displayed scars on his face, head and chest during the trial, anddefendant and the People stipulated that he had suffered serious physical injury within themeaning of the Penal Law.
The wife, who was no longer romantically involved with the victim by the time of trial,testified for the People, but gave a significantly different account of events from that offered bythe victim. She testified that she and defendant retained a friendly relationship after theirseparation because they had a young daughter. On Christmas Eve, she and defendant planned tomeet at the mall to buy a dress for the daughter. However, defendant did not receive an expectedlunch break from his work as a chef at a nearby restaurant, so he met the wife briefly, gave hersome money and returned to work. The victim then called the wife, who told him that she wasshopping for gifts for her to give to the daughter and for the daughter to give to defendant. Thevictim came to the mall and ordered the wife not to buy gifts for defendant. When she refused,the victim became "mad" and stopped speaking to her.
The wife completed her shopping and the victim drove her to the restaurant where she wasscheduled to work. The wife testified that she and defendant had previously arranged to meetbriefly at the restaurant so that she could give him the daughter's new dress. They had also madeplans to meet again later that night to celebrate the holiday with the daughter and other familymembers. When she and the victim arrived at the restaurant, defendant's car was in the parkinglot. The victim asked why he was there and became upset when the wife told him about theirplans for the evening. She asked the victim to drop her off and leave, but he refused and parkedthe car. The wife got out, saw defendant as she walked toward the restaurant, spoke with himbriefly about the dress exchange and said that she had to go because she was running late for hershift. The victim, whom the wife described as "really mad," then joined them, complaining to thewife that he thought she was late to work. The wife "tried to explain" the plans for the dressexchange to the victim and, because she was late, continued into the restaurant, telling the victimand defendant to "just talk and leave." When she left, the two men were arguing, but were notphysically fighting. After she punched in, however, someone told her that defendant and thevictim had begun to fight. She went back outside and saw the victim on top of defendant,punching him in the face. She tried and failed to separate them, unsuccessfully sought help insidethe restaurant, called 911 and went back outside. When she returned, defendant was gone and thevictim was near the restaurant doorway, bleeding. She testified that the victim later told her thathe had chased defendant after the fight, saying that he was having difficulty breathing but "stillwent to [defendant's] car to get him."
[*3] Defendanttestified on his own behalf, stating that he had learned about the wife's affair with the victimshortly after their separation and had never met the victim, but had seen a picture of him and hadonce spoken with him briefly on the telephone. He said that he and the wife had remainedfriendly after the separation, that he wanted to avoid conflict with the victim for the sake of thewife and daughter and that he had no wish to fight with the victim, having heard that he wasviolent and got into frequent fights. Defendant's testimony was similar to the wife's in describingtheir interrupted plans to go shopping together and the arrangements to exchange the daughter'sdress. He said that he went to the wife's workplace for this purpose at about 5:00 p.m., found thatshe had not yet arrived, and was walking toward his car to leave when the wife got out of anarriving car. Defendant recognized the car as belonging to the mutual friend, and so thought thatthe friend was driving. The wife spoke briefly with defendant, told him that she was late andhurried into work. As she did so, the victim suddenly came up and, after saying something todefendant, took a swing at him. They began to struggle, and defendant testified that the victim hithim two or three times on the left side of his head, using what defendant believed were brassknuckles and striking him so hard that defendant "kind of lost [his] vision a little" and thought hemight lose consciousness. The victim then pulled out a small blade and said, "[T]his is what Ihave for you." The victim slashed at defendant a couple of times with the knife while defendanttried to block his arms. They "kind of rolled around [on the ground] a little bit" and the victimgot on top of defendant and punched him "quite a few times." Defendant stated that he was "veryscared," had never been in such a situation before and believed that he urinated on himself duringthe altercation, as he later discovered that his clothing was wet. He testified that he "probably"punched at the victim a couple of times, that they got up and fell to the ground more than once asthey continued to struggle, and that he was eventually able to grab the victim's arms and getcontrol over them. However, he said that his memory was imperfect and he could not rememberexactly what had happened or how the victim had become injured.[FN1] Eventually he was able to break away and runto his car. The victim pursued him, tried to pull the car door open as defendant pulled it shut, andpunched at the windows and grabbed at the car as defendant drove away.
Defendant said that he drove first to his apartment, then to the home of a friend and finally tohis brother's home, fearing to remain in any of these places because he did not know whether thevictim or his friends were looking for him. His brother advised him to go to the home of anotherrelative. As defendant drove away, he saw headlights following him closely, became nervous andmissed a turn. When he pulled into a parking lot to turn around, the vehicle followed him andblocked him when he tried to evade it. Defendant said that he could not see very well because itwas dark; he heard men yelling and telling him to get out. When he saw police with their gunsdrawn, he said that he moved slowly in turning off the car and unlocking the doors because hewas still nervous. Police took him out through the door and were "a little rough getting [him] outof the car." They told him that he had hurt someone badly, and he responded that he had acted inself-defense.[FN2]
At the police station, defendant gave a video-recorded statement that was admitted intoevidence. The statement was similar to his later trial testimony in most respects, but containedgreater detail regarding the fight. In the video statement, defendant acknowledged to police thathe got possession of the knife from the victim during the fight. He stated that he and the victim[*4]wrestled on the ground until he was finally able to get thevictim off him and they got up. Defendant said that he then heard a click, saw the knife in thevictim's hand and tried to back up, using his left arm to block while the victim kept trying toswing the knife at him. Defendant said that he did not remember the details of how he grabbedthe knife but that the victim continued to come at him after he did so; defendant said that he kept"swinging for his life" as the victim attacked and punched him. The victim then knocked theknife out of defendant's hand. As the victim looked for it, defendant saw an opportunity to escapeand ran for his car, with the victim pursuing him. Police photographed defendant's injuries,which included a black eye and bruising on the left side of his face, a number of small abrasionsin the same area, bruising on his palm and a small laceration on one finger.
Police officers who were called to the scene testified that they found the victim near therestaurant with slash wounds on his head and a wound on his chest. Nearby, investigators found afolding knife with an orange cord on the handle and blood on the blade that, when tested,matched the victim's DNA profile. DNA from another donor was also present on the blade in aquantity that was insufficient to include or exclude defendant. DNA from a single sourcematching that of the victim was also present on the handle. The wife identified the knife asbelonging to the victim, and stated that the victim regularly carried a knife because he frequentlygot into fights. The victim, however, denied that the knife belonged to him and testified that itdid not resemble the weapon that defendant had used against him, which he described as amechanical knife with a blade that went straight in and out and did not fold. In defendant's car,investigators found a large fixed knife and a Leatherman tool with a small blade and otherimplements. The tool did not appear to have blood on it and was not tested, and a substance onthe blade of the fixed knife was tested and found not to be blood. The wife testified that the fixedknife looked like defendant's chef's knife, and defendant confirmed that it belonged to him,stating that he used it at work and carried it back and forth from his home because there wasnowhere at the restaurant for him to store it.
The police officers' testimony describing their pursuit of defendant was similar todefendant's, except that they said they pulled him out of the car through a window rather thanthrough the door. They also testified that defendant's face struck the pavement and that thiscaused bruising on defendant's face that was not present before he was removed from the car.They found multiple bloodstains on the interior and exterior of defendant's car, including on theoutside of the doors, the driver's window and the rear window on that side. Photographs of theblood stains were taken and admitted into evidence, but no DNA analysis was conducted.
As for the brass knuckles that defendant believed the victim was using, the victimacknowledged that he was wearing multiple large metal rings on both hands during thealtercation, and that he frequently wore rings when he went out. The wife testified that the victimoften wore these rings and called them his "lucky" rings because he used them to defend himselfin fights. The rings were collected from the victim at the hospital and admitted into evidence; aninvestigator testified that the rings appeared to have blood on them but were not tested for bloodor DNA.
Witnesses offered conflicting accounts of the propensities toward violence of defendant andthe victim. Defendant testified that he had heard from his wife and a coworker that the victim hada history of violence and of picking fights. The coworker, who was the victim's cousin, hadadvised him to stay away from the victim and had told him that the victim had once broken abeer bottle over someone's head during a bar fight. The wife testified that she and the victim hadrecently begun to argue because the victim did not want her to continue her friendly relationshipwith defendant. She stated that the victim was "[r]eally aggressive" to her when they arguedabout this, had ordered her not to permit defendant to pick up the daughter at her home andwould not let her "go out or [anything] like that." She stated that he became aggressive when hedrank, which he did frequently, that he had pushed her once, and that she had seen him get intofights. She testified that she worried that he might do something to defendant, and furthertestified that the victim was a member of a gang and had made a threat to defendant about this[*5]gang; the wife understood this threat to mean that he wantedto meet defendant with the gang and beat defendant up.
The mutual friend from whom the victim borrowed the car was living with the wife at thetime of the incident and had known the victim for about four years. She said that she had neverknown the victim to carry a knife, including the folding knife that was found at the scene, andthat she had never seen him become angry when he was drinking or get into a fight. The friendtestified that defendant had once asked her to help him reconcile with the wife and, when sherefused, had threatened to beat her up or kill her. She acknowledged on cross-examination thatshe had not reported this alleged threat to the police. The wife, on the other hand, testified thatshe had been involved with defendant for 10 years and had never seen him become violent.Defendant also offered the testimony of three supervisors at restaurants where he had worked, allof whom stated that they had never known defendant to be violent or to become angry. Theyconsistently described him as a valued, hard-working employee who did not cause conflicts atwork and who had been successfully promoted into positions that required the ability to handlethe stressful restaurant environment calmly.
Turning first to defendant's justification defense, a person may use physical force uponanother person if he or she was not the original aggressor and "reasonably believes such to benecessary to defend himself [or] herself . . . from what he or she reasonably believesto be the use or imminent use of unlawful physical force by such other person" (Penal Law§ 35.15 [1]; see Penal Law § 35.15 [1] [b]). Further, a personmay use deadly physical force if he or she reasonably believes that the other person is doing so oris about to do so, but may not use deadly physical force when the person "knows that withcomplete personal safety . . . to oneself and others he or she may avoid the necessityof so doing by retreating" (Penal Law § 35.15 [2] [a]; see Penal Law§ 10.00 [11]; Matter of Y.K., 87 NY2d 430, 434 [1996]; People vYoung, 240 AD2d 974, 976 [1997], lv denied 90 NY2d 1015 [1997]).[FN3] Here, as a different verdict wouldnot have been unreasonable, "[we] 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 v Bleakley, 69 NY2d 490, 495 [1987] [internalquotation marks and citation omitted]). Upon our independent review, we find that the Peopledid not prove beyond a reasonable doubt that defendant could have retreated with completepersonal safety before he used deadly physical force, or that he knew he could do so.
The victim's testimony that defendant began the fight and was the first to use a knife wouldhave supported the conclusion that defendant could have retreated before he did so, had CountyCourt found it to be credible. However, at sentencing, the court expressed a contrary finding,stating that defendant had not brought the knife to the scene of the fight and, instead, thatdefendant had somehow gotten possession of the knife from the victim during the struggle.Deferring to this credibility assessment, as we must (see e.g. People v Rice, 162 AD3d 1244, 1246 [2018], lvdenied 32 NY3d 940 [2018]; People v Perillo, 144 AD3d at 1400), we accept thecourt's implied finding that the victim was the first to use deadly physical force. Significantly,until the victim did so, defendant had no duty to retreat (see Matter of Y.K., 87 NY2d at434; People v Curry, 85 AD3d1209, 1212 [2011], lv denied 17 NY3d 815 [2011]; People v Fermin, 36 AD3d 934,936 [2007]).
We find nothing in the evidence that proves beyond a reasonable doubt that defendant couldhave retreated with complete physical safety after the knife was drawn. Although the testimonywas sharply conflicting as to many details of the confrontation, both defendant and the victimagreed that the fight went on continuously after the knife emerged. The victim described anunbroken struggle in which he managed to continue to throw punches at defendant even after hewas stabbed; although he said that he was trying to defend himself against defendant's [*6]continued attack, he did not testify that there was any break in theaction when defendant could have known that he might safely escape. During the brief part of thestruggle that the wife described, the victim was on top of defendant, punching him. Defendanttold police that he tried to back up after the victim pulled out the knife, but that the victim keptswinging at him. He said that the victim continued to come at him and punch him even afterdefendant got possession of the knife, forcing him to keep "swing[ing] for his life." According todefendant, the moment when the victim was distracted by the dropped knife was his firstopportunity to escape, and the victim pursued him even then. The wife supported this claim withher testimony that the victim told her that he pursued defendant to the car. Critically, although thevictim denied that he did so, the forensic evidence of bloody prints on the exterior doors andwindows of defendant's car—including some that resemble fingerprints—providesobjective support for defendant's assertion that the victim tried to pull the car door open asdefendant tried to close it, pounding on the car even as defendant drove away. Upon review, wefind this evidence particularly compelling, as it appears to confirm that defendant was indeedfleeing—and still being pursued.
At sentencing, County Court stated that it rejected defendant's justification defense because itfound that defense to be inconsistent with the multiple wounds on the victim's face, neck andbody. However, "independently assess[ing] all of the proof" and considering the correctness ofthe court's factual determinations in the role of a second factfinder, as we must, we do not agreethat these injuries are inconsistent with defendant's assertion that he had to swing the kniferepeatedly to defend himself, as the victim continued to attack and punch him (People v Delamota, 18 NY3d 107,116-117 [2011]). More significantly, the severity of the victim's injuries does not provide themissing proof that defendant could have retreated with complete safety before he used deadlyphysical force or even during the knife fight, when he and the victim both testified that the victimcontinued to throw punches. It was the People's burden to prove "to the same degree as anyelement of the crime charged" that defendant's actions were not justified (People vMcManus, 67 NY2d 541, 546-547 [1986]; see People v Williams, 161 AD3d 1296, 1297 [2018], lvdenied 32 NY3d 942 [2018]). Exercising our factual review power and viewing the evidencein a neutral light, we find that the People did not do so and, thus, that defendant's conviction forassault in the first degree must be reversed (see Matter of Y.K., 87 NY2d at 434; People v Morgan, 99 AD3d 622,622-623 [2012]; see also Matter ofDelroy S., 25 NY3d 1064, 1067 [2015]). In view of this conclusion, we also find that theweight of the evidence does not support defendant's conviction for criminal possession of aweapon in the fourth degree (see Penal Law § 265.01 [2]; see also People v Bonilla, 154 AD3d160, 164-165 [2017], lv denied 30 NY3d 1017 [2017]; People v Sackey-El, 149 AD3d1104, 1106 [2017]; People v Monger, 71 AD2d 641, 641 [1979]).
Defendant's remaining contentions are rendered academic by this determination.
Clark, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment is reversed, onthe facts, and indictment dismissed.
Footnote 1:Defendant offered the testimonyof an expert in the field of psychophysiology, or human stress response, who opined that it wasnot unusual for a person who is attacked in what he called a "critical incident" to be unable toremember it in detail, and that it is also common for such a person to enter into an altered state ofmind after the incident that the expert called tachypsychia, or time-space disorientation, in whichthe person may be confused, feel fearful and threatened and be unable to calm down for sometime afterwards.
Footnote 2:The testimony established thatpolice went to the brother's house because the mutual friend had told them that defendant mightbe found there, and then followed defendant's car when he left.
Footnote 3:The use of a knife during a fight"constitute[s] deadly physical force as a matter of law" (People v Kerley, 154 AD3d 1074, 1075 [2017], lv denied30 NY3d 1106 [2018]).