| People v Signor |
| 2019 NY Slip Op 04502 [173 AD3d 1264] |
| June 6, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Nicholas Signor, Also Known as Zachary Signor,Appellant. |
Law Offices of Michael Pollok, PLLC, Red Hook (Michael S. Pollok of counsel), forappellant.
P. David Soares, District Attorney, Albany (Collin F. D'Arcy of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered January 24, 2018, convicting defendant following a nonjury trial of the crime of assaultin the second degree.
In the early morning hours of September 10, 2016, a cab ride home after a night of drinkingended with defendant producing a pocket knife and slashing another passenger. Defendant fledthe cab and was soon apprehended in a nearby park. As a result of the attack, he was charged inan indictment with attempted assault in the first degree and assault in the second degree. CountyCourt, following a hearing, suppressed evidence that included the contents of defendant's walletand cell phone and certain statements he made to investigators. A bench trial ended with CountyCourt finding defendant guilty of assault in the second degree. County Court sentenced defendantto one year in jail, and he appeals.
We affirm. Defendant first challenges the sufficiency and the weight of the evidencesupporting the conviction. His legal sufficiency claim is only preserved with regard to hisjustification defense, the sole focus of his renewed motion to dismiss at the close of all proof attrial (see People v Lane, 7 NY3d888, 890 [2006]; People vStahli, 159 AD3d 1055, 1056 [2018], lv denied 31 NY3d 1088 [2018]).Nevertheless, the weight argument requires us to "consider the evidence adduced with respect toeach element of the" crime for which defendant was convicted (People v Ash, 162 AD3d 1318,1318 [2018], lv denied 32 NY3d 1002 [2018]; see People v Hilton, 166 AD3d 1316, 1317-1318 [2018], lvdenied 32 NY3d 1205 [2019]). To prove assault in the second degree, the People wereobliged to show that defendant intentionally caused physical injury to another person "by meansof a deadly weapon or a dangerous instrument" (Penal Law § 120.05 [2]; seePenal Law § 10.00 [9], [12], [13]). In light of defendant's assertion that he acted inself-defense, the People were further required to "demonstrate beyond a reasonable doubt that. . . defendant did not believe deadly force was necessary or that a reasonable personin the same situation would not have perceived that deadly force was necessary" (People v Umali, 10 NY3d 417,425 [2008], cert denied 556 US 1110 [2009]; see Penal Law§§ 25.00 [1]; 35.15 [2] [a]; People v Williams, 161 AD3d 1296, 1297 [2018], lv denied32 NY3d 942 [2018]; People vGibson, 141 AD3d 1009, 1010 [2016]).[FN*]
The cab's driver and all but one of its several passengers—the exception beingdefendant's friend and traveling companion—testified at trial. The victim was friends withall of the passengers except for defendant and his friend, who were strangers, and the two groupshad a verbal dispute during the cab ride. Defendant testified that his friend was threatened with abeating during this dispute and, although no one else recalled that point, another passengeracknowledged that it was possible. When the cab reached a stop sign, defendant's friend boltedout of it without paying the driver. Defendant quickly tried to exit the cab himself, at which pointthe victim, believing that defendant was also skipping out on the fare, reached out and restraineddefendant. Defendant freed himself by slashing the victim several times in the arm with a pocketknife, a point confirmed by resulting injuries that were consistent with a bladed weapon anddefendant's own testimony. Defendant's use of the knife caused deep wounds that requireddozens of sutures to close and caused the victim to lose range of motion in one of his fingers. Theforegoing proof established that defendant inflicted physical injuries upon the victim with adangerous instrument, and readily permitted the inference that he intended to do so (seePeople v Williams, 161 AD3d at 1297-1298; People v Taylor, 118 AD3d 1044, 1045 [2014], lv denied23 NY3d 1043 [2014]; People vNewland, 83 AD3d 1202, 1204 [2011], lv denied 17 NY3d 798 [2011]).
As for defendant's justification defense, he testified that he was anxious because of the verbaldispute and the threats made to his friend, and that he became fearful for his life when the victimplaced him in a chokehold that left him unable to breathe. In contrast, others downplayed theseverity of the argument between the two groups, the victim testified that he only blocked orgrabbed defendant with his arm and did not place defendant in a chokehold, and the victim, thedriver and other passengers all agreed that the physical contact between defendant and the victimwas brief. Defendant further acknowledged that the other occupants of the cab were demandingthat he pay his fare and that of his absconding friend, making it foreseeable that either the driveror the other passengers might try to stop him if he tried to leave in a hurry. No weapons weredisplayed or used by the victim, and defendant was later observed to have minor redness andabrasions that his own medical expert acknowledged were not clear indications of forciblechoking. This proof, when viewed in the light most favorable to the People (see People v Danielson, 9 NY3d342, 349 [2007]), was legally sufficient to permit the finding "that defendant did notreasonably believe that the [victim was] using or about to use deadly physical force against him"so as to justify his actions (People v Newland, 83 AD3d at 1205). Moreover, afterviewing the evidence in a neutral light and according deference to County Court's "opportunity toview the witnesses, hear the testimony and observe demeanor" (People v Bleakley, 69NY2d 490, 495 [1987]; see People v Lane, 7 NY3d at 890), we find that the verdict issupported by the weight of the evidence (see People v Gibson, 141 AD3d at 1011-1012;People v Newland, 83 AD3d at 1205).
Defendant next contends that various evidentiary errors warrant reversal, but we do notagree. First, he argues that the testimony of another passenger who identified him in a show-upidentification should have been stricken due to a Rosario violation. The violation inquestion occurred when the People failed to request the police cruiser video of the identificationuntil after it would have been destroyed in the regular course of business. It was accordinglyunclear whether this Rosario material ever existed and, if it did, whether its absence wasprejudicial to defendant. Under these circumstances, County Court did not abuse its discretion inaddressing the potential violation by permitting itself to make an adverse inference against thePeople or disregard the passenger's testimony relating to the identification (see People v Olson, 126 AD3d1139, 1141 [2015], lv denied 25 NY3d 1169 [2015]; People v Davis, 18 AD3d 1016,1018-1019 [2005], lv denied 5 NY3d 805 [2005]). Second, County Court did not abuseits discretion in permitting the People to elicit testimony that defendant provided a false name tothe officer who arrested him (see Peoplev Abdul-Aleem, 133 AD3d 867, 868 [2015], lv denied 27 NY3d 1148 [2016];People v Miller, 123 AD2d 721, 721 [1986], lv denied 70 NY2d 933 [1987]), anddefendant's cross-examination of the officer opened the door to a more probing inquiry on thatpoint.
There are additional allegations by defendant of prosecutorial misconduct in the People'ssummation and examination of witnesses, many of which are unpreserved for our review(see CPL 470.05 [2]; People vSt. Pierre, 141 AD3d 958, 962 [2016], lv denied 28 NY3d 1031 [2016]). In anyevent, inasmuch as "this was a nonjury trial and there is no indication that County Court's verdictwas influenced by [the] alleged conduct," we cannot say that defendant was deprived of a fairtrial (People v Ford, 90 AD3d1299, 1302 [2011], lv denied 18 NY3d 994 [2012]; see People v King, 111 AD3d1345, 1346 [2013], lv denied 23 NY3d 1022 [2014]).
Defendant's assertion that he received the ineffective assistance of counsel is also unavailing.Defendant points to potential defenses that defense counsel did not pursue, but those defenses areunsupported by the record and had "little or no chance of success" (People v Caban, 5 NY3d 143, 152[2005]; see People v Martin, 141AD3d 734, 735-736 [2016], lv denied 28 NY3d 1074 [2016]; People v Harris, 129 AD3d 1522,1525 [2015], lv denied 27 NY3d 998 [2016]). He further notes that defense counselelicited details about the previously-suppressed contents of his wallet and his cell phone, butsuch served "a legitimate defense strategy" of explaining defendant's behavior after the attack andcasting it in an innocuous light (People vKerley, 154 AD3d 1074, 1078 [2017], lv denied 30 NY3d 1106 [2018]). Otherpurported deficiencies are raised as well but, after considering the circumstances of this case "intotality and as of the time of the representation," we are satisfied that defendant received"meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant failed to preserve his objection to the manner in which sentencing proceedingswere conducted, and we perceive no reason to take corrective action in the interest of justice(see CPL 380.50 [1]; People vWallace, 29 AD3d 1085, 1085 [2006], lv denied 7 NY3d 796 [2006]). Lastly,County Court weighed "the nature and circumstances of the crime and . . . thehistory and character of" defendant when it opted for a definite sentence of one year in jail overthe longer indeterminate prison sentence recommended by the People, and we do not find itssentence to be harsh or excessive (Penal Law § 70.00 [4]; see People vWard, 180 AD2d 860, 860 [1992]).
Egan Jr., J.P., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the County Court of Albany County for further proceedingspursuant to CPL 460.50 (5).
Footnote *:County Court correctlyconsidered whether defendant was justified in using deadly physical force rather than physicalforce, as the use of a knife "constituted deadly physical force as a matter of law" (People v Kerley, 154 AD3d 1074,1075 [2017], lv denied 30 NY3d 1106 [2018]; see People v Hernandez, 165 AD3d 1473, 1480 n 3 [2018]; People v Carey, 159 AD3d 1529,1530 [2018], lv denied 31 NY3d 1079 [2018]).