| People v Watson |
| 2019 NY Slip Op 05723 [174 AD3d 1138] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Paul Watson, Appellant. |
Mark Diamond, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Clark, J.P. Appeal from a judgment of the Supreme Court (Ceresia, J.), rendered June 1,2017 in Albany County, upon a verdict convicting defendant of the crimes of attempted assault inthe first degree and assault in the second degree.
Following a street fight that resulted in the victim sustaining injuries consistent with stabwounds, defendant was charged by indictment with attempted assault in the first degree andassault in the second degree. After a jury trial, defendant was convicted as charged andsentenced, as a second felony offender, to a prison term of 15 years for attempted assault in thefirst degree and a concurrent prison term of seven years for assault in the second degree, followedby five years of postrelease supervision. Defendant appeals, and we affirm.
We turn first to defendant's challenge to the legal sufficiency and the weight of the evidencesupporting his convictions. When addressing a challenge to the legal sufficiency of the evidence,this Court evaluates whether the evidence, viewed in the light most favorable to the People,provides "any valid line of reasoning and permissible inferences which could lead a rationalperson to the conclusion reached by the jury on the basis of the evidence at trial and as a matterof law satisfy the proof and burden requirements for every element of the crime charged"(People v Bleakley, 69 NY2d 490, 495 [1987] [citations omitted]; see People v Bueno, 18 NY3d 160,169 [2011]). In contrast, a weight of the evidence review requires this Court to first determinewhether, based on all of the credible evidence, a different finding would have been unreasonableand, if not, "weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony" to determine if the verdict issupported by the weight of the evidence (People v Bleakley, 69 NY2d at 495 [internalquotation marks and citation omitted]; see People v Marshall, 162 AD3d 1110, 1111-1112 [2018], lvdenied 31 NY3d 1150 [2018]).
A conviction for attempted assault in the first degree, as charged in the indictment, requiresproof that, "[w]ith intent to cause serious physical injury to another person," the defendantattempted to cause "such injury . . . by means of a deadly weapon or a dangerousinstrument" (Penal Law § 120.10 [1]; see Penal Law § 110.00;People v Rawlinson, 170 AD3d1425, 1426 [2019]). As to assault in the second degree, the People were required to provethat, "[w]ith intent to cause physical injury to another person, [the defendant] cause[d] suchinjury to such person . . . by means of a deadly weapon or a dangerous instrument"(Penal Law § 120.05 [2]). " 'Dangerous instrument' means any instrument,article or substance . . . which, under the circumstances in which it is used,attempted to be used or threatened to be used, is readily capable of causing death or other seriousphysical injury" (Penal Law § 10.00 [13]).
The trial testimony established that three law enforcement officers observed defendant andthe victim fighting in the street while the officers were on their way to make an arrest unrelatedto defendant. Each officer stated that he did not observe defendant with a weapon, but two of theofficers testified that defendant was striking the victim with "a straight arm," which wasinconsistent with fist punches. The medical evidence, including testimony from a trauma surgeonwho treated the victim, established that the victim had sustained several life-threatening stabwounds to his abdomen and arm from "a slender sharp instrument." More specifically, themedical evidence demonstrated that a large vein in the victim's left arm "had been cutthrough-and-through" and that, had victim's arm and abdominal injuries not been immediatelyaddressed, he could have died from either blood loss or septic shock caused by gastric contentsleaking from his stomach. A weapon was never recovered, despite searches of the area,defendant's person and apartment—to which defendant had retreated after theattack—and a vehicle belonging to defendant's girlfriend. With respect to defendant'sidentity as the assailant, forensic evidence established that the blood found on the victim's jeanswas also found under defendant's fingernails.[FN*] Furthermore, one of the police officers testifiedthat he had known defendant for more than 20 years and recognized him as the assailant.
Defendant offered a conflicting version of events. Several witnesses, including defendant anddefendant's girlfriend, testified that defendant had been attacked by the victim and another male.Defendant denied having a weapon and testified that he was merely defending himself during afist fight. Notwithstanding defendant's alternate version of events and the fact that a weapon wasneither observed nor recovered by the police, we find that the evidence, viewed in the light mostfavorable to the People, presented a valid line of reasoning and permissible inferences fromwhich a rational juror could conclude that defendant, with intent to cause serious physical injury,possessed a dangerous weapon with which he repeatedly stabbed the victim (see People v Gragnano, 63 AD3d1437, 1439-1440 [2009], lv denied 13 NY3d 939 [2010]; People v Wade,274 AD2d 438, 439 [2000], lv denied 95 NY2d 939 [2000]). Further, although a differentverdict would not have been unreasonable, viewing the record in a neutral light and givingdeference to the jury's credibility determinations, we find that the verdict was not against theweight of the evidence (see People vGill, 168 AD3d 1140, 1142 [2019]; People v Pine, 126 AD3d 1112, 1115-1116 [2015], lvdenied 27 NY3d 1004 [2016]).
Next, defendant asserts that Supreme Court deprived him of a fair trial by allowing one of thepolice officers to testify that he had known defendant for more than 20 years. In so testifying, thepolice officer did not reference any prior criminal activity involving defendant. The officerexplained that, when working as a foot patrol officer, he "made it a point to know all theindividuals in the area," which included defendant. Contrary to defendant's contention, suchtestimony did not constitute Molineux evidence, as it did not concern any alleged illegalor immoral acts, or otherwise demonstrate bad character or criminal propensity (see People v Arafet, 13 NY3d 460,465 [2009]; People v Binning, 108AD3d 639, 639 [2013], lv denied 22 NY3d 954 [2013]; People v McKean, 89 AD3d 866,867 [2011], lv denied 18 NY3d 960 [2012]). Given that the testimony was relevant to theissue of identity and explained how the officer knew defendant, we discern no abuse of discretionin Supreme Court permitting the challenged testimony (see People v Arafet, 13 NY3d at465; People v McKean, 89 AD3d at 867).
Defendant further contends that he received ineffective assistance of counsel. To succeed ona claim of ineffective assistance of counsel under the NY Constitution, a defendant mustdemonstrate that defense counsel deprived him or her of a fair trial by providing less thanmeaningful representation (see People vCaban, 5 NY3d 143, 152 [2005]; People v Ildefonso, 150 AD3d 1388, 1388 [2017], lv denied30 NY3d 980 [2017]). Many of defendant's specific criticisms of counsel, including his claimthat defense counsel failed to lodge certain objections and did not address the absence of adangerous weapon, are belied by the record. Our review of the record reveals that defensecounsel made appropriate pretrial motions, effectively cross-examined the People's witnesses,presented several defense witnesses and delivered cogent opening and closing statements, whichdrew attention to the absence of evidence of a dangerous weapon. Viewed in totality, we find thatdefense counsel's representation was meaningful (see People v Anthony, 152 AD3d 1048, 1053-1054 [2017], lvdenied 30 NY3d 978 [2017]; People v Ildefonso, 150 AD3d at 1388-1390; People v Gokey, 134 AD3d 1246,1247-1248 [2015], lv denied 27 NY3d 1069 [2016]). Given that "our state standard. . . offers greater protection than the federal test" and that the state standard wassatisfied here, defendant's claim of ineffective assistance of counsel under the US Constitutionalso fails (People v Caban, 5 NY3d at 156; see People v Ramos, 48 AD3d 984, 987-988 [2008], lvdenied 10 NY3d 938 [2008], cert denied 556 US 1110 [2009]).
In addition, defendant failed to preserve his argument that Supreme Court erred in notadvising him of his right to contest the constitutionality of his prior conviction (see People v Sands, 157 AD3d1136, 1138 [2018], lv denied 31 NY3d 986 [2018]; People v Gathers, 106 AD3d 1333,1333-1334 [2013], lv denied 21 NY3d 1073 [2013]). Nevertheless, were we to reviewthis argument, we would find it to be without merit (see People v Melton, 136 AD3d 1069, 1070 [2016], lvdenied 27 NY3d 1002 [2016]; People v Wood, 108 AD3d 932, 932-933 [2013]). To the extentthat defendant argues that defense counsel failed to inform him of the consequences of beingdeemed a prior felony offender, such argument is more appropriately the subject of a CPL article440 motion (see CPL 440.10; People v Taylor, 156 AD3d 86, 90 [2017], lv denied 30NY3d 1120 [2018]; People v Perry,154 AD3d 1168, 1171 [2017]).
To the extent that we have not addressed any of defendant's contentions, they have beenreviewed and found to be without merit.
Mulvey, Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Given the testimony that medicalpersonnel removed the victim's jeans and handed them directly to an observing police officer, wefind that the People provided the necessary reasonable assurances of the identity and unchangedcondition of this evidence (see People vHawkins, 11 NY3d 484, 494 [2008]; People v Torres, 146 AD3d 1086, 1088 [2017], lv denied29 NY3d 1087 [2017]; People v Arthur, 99 AD2d 595, 595-596 [1984]).