| People v Baber |
| 2020 NY Slip Op 02294 [182 AD3d 794] |
| April 16, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Scott Baber, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Garry, P.J. Appeals (1) from a judgment of the County Court of Warren County (HallJr., J.), rendered January 5, 2018, upon a verdict convicting defendant of the crimes ofstrangulation in the second degree, assault in the second degree and assault in the thirddegree (two counts) and the violation of harassment in the second degree, and (2) froman order of said court, entered April 17, 2018, which set the amount of restitution owedby defendant.
In June 2017, defendant assaulted his girlfriend (hereinafter the victim) in the Townof Lake George, Warren County, and then assaulted her again several days later. He wascharged with strangulation in the second degree, assault in the second degree, assault inthe third degree (two counts) and harassment in the second degree. Following a jury trial,he was convicted as charged and sentenced to consecutive prison terms of seven yearseach upon the convictions for strangulation in the second degree and assault in thesecond degree, followed by three years of postrelease supervision, with lesser concurrentterms for the remaining convictions. After a hearing, County Court ordered defendant topay restitution in the sum of approximately $20,000 for the victim's medical expenses.Defendant appeals from the judgment of conviction and from the restitution order.
Defendant asserts that his convictions for assault in the second degree andstrangulation in the second degree are not supported by legally sufficient evidence andare against the weight of the evidence. Specifically, he argues that the victim's testimonywas not consistent and credible enough to prove the elements of these convictions and,further, that the People failed to prove that he intended to cause injury to the victim, thathe strangled her or that a telephone that he threw at her was a dangerous instrument(see Penal Law §§ 120.05 [2]; 121.12). Defendant's generalmotion to dismiss at trial was not "specifically directed" at any of the errors now raisedupon appeal;[FN1]thus, his legal sufficiency claims are unpreserved for appellate review (People vGray, 86 NY2d 10, 19 [1995] [internal quotation marks and citation omitted]; see People v Harris, 177 AD3d1199, 1200 [2019]). Nevertheless, his assertion that his convictions are against theweight of the evidence requires us to determine whether each element of the crimes wasproven beyond a reasonable doubt (see People v McCollum, 176 AD3d 1402, 1403 [2019]; People v Secor, 162 AD3d1411, 1412 [2018], lv denied 32 NY3d 941 [2018]).
At trial, the victim testified that she and defendant had previously lived in Floridaand had a tempestuous romantic relationship. After a brief separation, the victimaccepted defendant's invitation to reunite and relocate with him to Lake George. Theymoved there in early June 2017 and lived in a room at a resort motel. The victim testifiedthat, on the evening of June 15, 2017, she and defendant drank alcohol at a gathering inthe motel office with the owner, his wife and several other employees, and then returnedto their room. They began to argue, and defendant became enraged, called the victimseveral profane names and then hit her in the crease of her eye and the corner of hermouth, causing her to bleed. The victim called the motel owner's wife, told her thatdefendant was "not in a right state of mind" and tried to leave the room. Before she coulddo so, defendant grabbed her and they fell to the floor, with the victim on her back anddefendant on top of her, "slamming [the victim's] head against the floor." The victimmanaged to escape and left the room.
A motel employee testified that he was working at this time in a tool room locateddirectly below the room of the victim and defendant. He heard them arguing, hearddefendant call the victim profane names, and heard the victim say, "[G]et off me. Thishurts. Don't touch me. Get away from me." He testified that defendant's speech wasslurred, that he sounded "very angry," and that the victim sounded "very worried andpanicked." The employee heard pounding on the floor that he described as "somethingbigger [than feet] like bodies hitting the floor." There was a "huge thud" followed bysilence for about 15 seconds. When the altercation resumed, the employee went to theoffice and told the owner's wife what he had heard. She directed him to go back to theroom and give the victim a cell phone that she had left behind. The employee did so andencountered the victim outside the room, bleeding and "crying her eyes out." He gave thevictim her phone, told her that he "[had] her back," and returned to the office to informthe motel owner's wife.
The victim testified that defendant had begun throwing her possessions out of theroom. Believing that help was on the way, she picked up some of her belongings andtook them inside, where she found that defendant was angrier than before. When shetried to leave, he intercepted her and they fell to the floor, with the victim face down anddefendant on top of her. Defendant told the victim that he was going to kill her, put hishands around her neck and closed his fingers so tightly around her throat that the victimcould not scream or breathe. She testified that she passed out and that, when she regainedconsciousness, defendant was "jerking" the hair on the back of her head and calling hername, sounding "scared . . . that he had actually killed [her]." Defendant gotoff the victim and she got up, scrambled onto a bed, backed into a corner and kickeddefendant away as he tried to approach her. Defendant then yanked the room telephoneout of the wall and threw it at the victim, striking her in the left eye and causing blood to"pour[ ]" from her face. At the sight of the blood, defendant calmed down, tried tocomfort the victim and allowed her to leave the room.
The victim went to the office and banged on the door until the motel owner's wifeanswered. The wife offered to call the police, but the victim declined. The wife gave thevictim ice and found her another room to spend the night. Once in this room, the victimtook cell phone pictures of her injuries; these were later admitted into evidence at trial.She testified that her face felt as if it was "on fire," that the vision in her left eye wasimpaired, and that her throat hurt when she swallowed or turned her head. Her injuredeye was swollen and "blew up," becoming much more swollen when she blew hernose.[FN2]
The employee who had brought the phone to the victim testified that, later that night,he received a call from defendant requesting cigarettes and rolling papers, which theemployee took to his room. The employee described the room as looking as if "a tornadowent through there," with a lamp knocked over and blood on the bedding. The employeetestified that the room telephone was missing, and that defendant told him that he hadthrown a phone at the victim. The following morning, the victim left her room andencountered a different employee, who testified that the victim's face was "demolished"and "black and blue from her hairline down to probably her lip." This employee told themotel owner's wife that the victim needed medical assistance, and the wife arranged tohave the victim taken to the hospital.
The victim testified that she did not tell hospital personnel the truth about the assaultbecause she did not want police to go to the motel. Instead, she told them that she hadbeen strangled and assaulted by a stranger, and she refused their offer to call police. Anurse and physician's assistant who treated the victim testified that she was complainingof a headache, neck pain, facial injuries and back pain, as well as vision difficulties. Shewas diagnosed with a fracture of the orbital wall of her left eye, a concussion and athoracic sprain; CAT scans revealing the eye injury were admitted into evidence. Aphysician's assistant testified that the victim's eye injury was consistent with suffering ablow to the eye, that her complaints of a hoarse voice, pain, swelling and neck tendernesswere consistent with being choked, and that the location of a bruise on her neck wasconsistent with having been strangled to unconsciousness. A radiologist described thevictim's eye injury as "serious" and stated that, without appropriate treatment, it couldhave resulted in infection, permanent vision loss or death. He opined that the injury couldhave been caused by a telephone thrown at the victim's face.
The victim testified that defendant picked her up at the hospital when she wasdischarged, and that she went with him because she had no money and nowhere else togo. He took her to another motel in the area, where he had obtained lodging thatday.[FN3] For thenext several days, the victim remained at the motel because she was embarrassed to beseen with her facial injuries. According to the victim, defendant treated her well at first,but eventually began to argue with her about her reluctance to leave the room. After onesuch argument, defendant left and returned later, intoxicated and angry.[FN4] Defendant began tobreak beer bottles and then struck the victim with an open hand in the injured eye,causing what the victim described as "take-your-breath-away type of pain." She went tothe motel office and asked the owner for help. This owner testified that he had previouslyseen the victim on the deck outside her room and had noticed that her face was badlybruised and swollen; defendant had told him that the victim had been in an automobileaccident. The victim told the owner what had occurred that day and at the first motel. Shedid not initially want to call the police, but the owner did so after speaking with theowner of the first motel. A police officer who was called to the scene testified that thevictim told him that defendant had caused her injuries and described the incidents at bothmotels. The officer called an ambulance for the victim and then arrested defendant, whowas in his room, intoxicated and asleep.
Medical personnel who treated the victim after the second incident testified that shetold them that defendant had caused her injuries on both occasions. She complained ofthroat and neck pain, as well as pain in the eye; medical personnel observed old bruiseson her face, as well as redness consistent with a new injury. A CAT scan revealed noworsening of the facial fracture.
Defendant testified on his own behalf, claiming that he and the victim had gone outto several bars after the gathering at the office on June 15, 2017, and that he had seen thevictim have an altercation with an unknown man in which she was not injured.Defendant went back to the motel without the victim; he said that when she returned, shehad a carpet burn, a scratch, scabs and a small mark on her left eye. Defendant admittedthat he called the victim names and that there was a struggle in which she ended up onthe bed, but he denied that he knocked her to the ground, restricted her from leaving, orplaced his hands on her throat. He stated that the victim screamed at him and threw a cellphone at him, striking him in the mouth, and that he threw it back. He acknowledged thatthe phone had caused the victim's eye injuries but stated that he did not intend to hit herand denied that he had thrown the motel room telephone, rather than a cell phone. As forthe second incident, defendant testified that he returned to the room after an absence tofind the victim intoxicated and the room in disarray. Exasperated, he gave the victimmoney, told her to buy a ticket to return home and then went to a nearby bar, where hehad four to five drinks. He admitted that he and the victim argued after he returned andthat he threw beer bottles, but denied that he put his hands on her or caused anyinjuries.
If the jury had credited defendant's account, a different verdict would not have beenunreasonable; accordingly, this Court must "weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony to determine if the verdict is supported by the weight of theevidence" (People v Creech,165 AD3d 1491, 1492 [2018] [internal quotation marks and citations omitted];see People v Bleakley, 69 NY2d 490, 495 [1987]). Inconsistencies in the victim'stestimony as to such matters as dates, times and room numbers were "thoroughlyexplored on cross-examination and presented credibility questions to be resolved by thejury" (People v Chaneyfield,157 AD3d 996, 1000 [2018], lv denied 31 NY3d 1012 [2018]). Based uponthe victim's testimony and the medical evidence, the jury could reasonably haveconcluded that defendant strangled her (see People v Pietoso, 168 AD3d 1276, 1278-1279 [2019],lv denied 33 NY3d 1034 [2019]; People v Hilton, 166 AD3d 1316, 1318 [2018], lvdenied 32 NY3d 1205 [2019]). Likewise, the evidence permitted the inference thatdefendant had the requisite intent to commit both crimes (see People v Williams, 161AD3d 1296, 1298 [2018], lv denied 32 NY3d 942 [2018]; People v Robinson, 158 AD3d1263, 1265 [2018], lv denied 32 NY3d 1067 [2018]). The weight of theevidence supports the conclusion that defendant threw the motel room telephone, ratherthan a cell phone, at the victim; further, the telephone was a "dangerous instrument"within the meaning of the Penal Law because the evidence established that, used in thatmanner, it was "readily capable of causing death or other serious physical injury" (PenalLaw § 10.00 [13]; see § 120.05 [2]; People v Ryder, 146 AD3d1022, 1024-1025 [2017], lvdenied 29 NY3d 1086 [2017]). Deferring to the jury's credibility determinationsand viewing the evidence in a neutral light, we find that the verdict is supported by theweight of the evidence (see Penal Law §§ 121.12, 120.05 [2];People v Ryder, 146 AD3d at 1024-1025; see generally People vBleakley, 69 NY2d at 495).
County Court did not err in allowing the People to amend the indictment shortlybefore the beginning of the trial. "At any time before or during trial, the court may, uponapplication of the [P]eople and with notice to the defendant and opportunity to be heard,order the amendment of an indictment with respect to defects, errors or variances fromthe proof relating to . . . time . . . , when such an amendmentdoes not change the theory or theories of the prosecution as reflected in the evidencebefore the grand jury which filed such indictment, or otherwise tend to prejudice thedefendant on the merits" (CPL 200.70 [1]). Here, the original indictment asserted thatdefendant's first assault upon the victim took place on June 15, 2017. About two weeksbefore the commencement of the trial, the People sought leave to amend it to provide thatthe incident occurred "on or about" June 15, 2017, on the ground that the initial date hadbeen an approximation and that subsequent investigation had narrowed down the time tothe late evening hours of June 15, 2017 and/or the early morning hours of June 16, 2017.The amendment did not alter the theory of the prosecution; the People consistentlymaintained, both before the grand jury and at trial after the amendment, that defendantstrangled and assaulted the victim in their room after the gathering in the motel officeand before her first treatment at the hospital on the morning of June 16, 2017. Theamendment merely served to address the possibility that the incident began in theevening of June 15, 2017 and continued past midnight into the early morning hours ofthe next day. There was no prejudice to defendant, who did not proffer an alibi defense(see People v Lane, 47AD3d 1125, 1127 [2008], lv denied 10 NY3d 866 [2008]; People v Alexander, 37 AD3d908, 909 [2007], lv denied 9 NY3d 839 [2007]; People v Davis, 21 AD3d590, 592 [2005]).
We reject defendant's assertion that he was denied a fair trial by the improperadmission of evidence of an uncharged crime—specifically, that the owner of thesecond motel saw him driving while intoxicated. "As a general rule, evidence ofuncharged crimes or prior bad acts may be admitted where they fall within the recognizedMolineux exceptions—motive, intent, absence of mistake, common plan orscheme and identity—or where such proof is inextricably interwoven with thecharged crimes, provides necessary background or completes a witness's narrative" (People v Ramsaran, 154 AD3d1051, 1054 [2017] [internal quotation marks and citations omitted], lvdenied 30 NY3d 1063 [2017]). "[A] court may admit such evidence only aftermaking the discretionary determination that the probative value of the evidenceoutweighs the potential for prejudice to the defendant" (People v Leonard, 29NY3d 1, 7 [2017]).
Here, contrary to defendant's claim, the owner did not testify that defendant wasintoxicated or offer an opinion on that subject. Instead, he testified that, on the eveningof the second incident, a car entered the parking lot, dropped defendant off and left. Theowner saw defendant "stumbl[e]" as he walked toward his parked car; he then got intohis car, drove it through the parking lot, and struck a fence post as he parked it near hisroom. On the first day of trial and, again, just before the owner gave this testimony,defense counsel objected to its admission on the grounds that evidence that defendanthad driven while intoxicated was unfairly prejudicial and that the People had failed toinclude it in a pretrial Molineux proffer. County Court allowed the testimony,finding that the evidence was part of the res gestae, was intertwined with the facts of thecase and was probative of the People's theory that defendant was intoxicated during thesecond attack on the victim.
The fact that the People did not request pretrial review of this evidence does notaffect its admissibility, as the testimony was not given until after "the issue was discussedand ruled on outside of the presence of the jury" (People v Royster, 107 AD3d 1298, 1301 [2013], lvdenied 22 NY3d 958 [2013]; see People v Small, 12 NY3d 732, 733 [2009]). WhileCounty Court should have provided an express recital of its discretionary balancing ofthe testimony's probative value against the potential for prejudice, "viewed in the contextof . . . defense counsel's opposition based on its prejudicial effect, thecourt's proper exercise of its discretion is implicit" (People v Milot, 305 AD2d729, 731 [2003], lv denied 100 NY2d 585 [2003]). Although a limitinginstruction would have been advisable, none was requested (see People v Lindsey, 75 AD3d906, 908 [2010], lv denied 15 NY3d 922 [2010]). We note that the probativevalue of the testimony was somewhat limited due to its cumulative nature, as the Peoplepresented considerable other testimony establishing that defendant was intoxicated at thattime. However, the potential for prejudice was also limited, as the testimony was briefand the People did not highlight the fact that defendant operated his vehicle or argue thatthis showed any propensity for crime. In view of the overwhelming proof of defendant'sguilt, we find that any error in the admission of this testimony was harmless (seeid.; People vEchavarria, 53 AD3d 859, 863 [2008], lv denied 11 NY3d 832[2008]).
County Court did not err in declining defendant's request for new assigned counseldue to a potential conflict of interest, and defendant was not denied the effectiveassistance of counsel as a result. Defendant was represented at trial by two attorneys fromthe Public Defender's office. On the first day of trial—a Monday—CountyCourt stated that the Public Defender's office had learned on the previous Friday that adifferent attorney in that office had previously represented one of the People'switnesses—a motel employee—in an unrelated youthful offender matter.The court assigned counsel to assist the employee in deciding whether to waive theattorney-client privilege for purposes of cross-examination; after consultation withcounsel, the employee stated that he would waive the privilege. Defendant objected, andthe court deferred its decision to give him time for consideration. On the next day,defendant said that he wanted new representation, stating that he was concerned that thePublic Defender's office had not discovered the conflict earlier and describing hisunhappiness with his representation for various reasons unrelated to the conflict ofinterest. County Court discussed defendant's concerns with him at some length andultimately declined to assign new counsel, finding that defendant had been unable toarticulate any potential conflict.
It is defendant's "heavy burden" to show that a potential conflict of interest "affected,or operated on, or [bore] a substantial relation to the conduct of the defense" (People v Sanchez, 21 NY3d216, 223 [2013] [internal quotation marks and citation omitted]; see People vLongtin, 92 NY2d 640, 644 [1998], cert denied 526 US 1114 [1999]; People v McCann, 126 AD3d1031, 1035 [2015], lv denied 25 NY3d 1167 [2015]). "Defendant has failedto make that showing, as the witness waived his attorney-client privilege for purposes ofcross-examination and, indeed, was vigorously cross-examined" (People vMcCann, 126 AD3d at 1035; see People v Harris, 99 NY2d 202, 211 [2002];People v Robles, 115 AD3d30, 36-37 [2014], lv denied 22 NY3d 1202 [2014]). Defendant's remainingclaims of ineffective assistance of counsel—such as his assertions that his counselfailed to visit him or answer his questions—involve matters outside the recordand, thus, would be more appropriately addressed in a motion pursuant to CPL article440 (see People v Mastro,174 AD3d 1232, 1233 [2019]; People v Trimm, 129 AD3d 1215, 1216 [2015]).
Defendant failed to preserve the claim that his sentence was imposed in retaliationfor his decision to go to trial rather than accepting prior plea offers, as he did not raise itat sentencing (see People v ZiHe Wu, 161 AD3d 1396, 1397-1398 [2018], lv denied 32 NY3d 943[2018]). In any event, the fact that his sentence is substantially longer than those offeredto him in plea negotiations, without more, does not establish vindictiveness (seeid. at 1398; People vMartinez, 144 AD3d 1326, 1326 [2016], lv denied 28 NY3d 1186[2017]). Notably, County Court remarked at sentencing that it would not have approvedthe prior plea offers if it had been privy to the information that was disclosed during thetrial. In view of the severity of the victim's injuries and defendant's lengthy criminalhistory in several other states, we perceive no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence (see People v Pleasant, 149AD3d 1257, 1261 [2017], lv denied 30 NY3d 1022 [2017]).
We find no merit in defendant's claim that the amount of restitution imposed isexcessive and unsupported by the evidence. A court may "order a defendant to makerestitution of the fruits of his or her offense or reparation of the actual out-of-pocket losscaused thereby" (People vConnolly, 27 NY3d 355, 359 [2016] [internal quotation marks and citationsomitted]; see Penal Law § 60.27), and restitution may be imposed inan amount greater than the statutory cap of $15,000 when the total sum represents"medical expenses actually incurred by the victim . . . as a result of theoffense committed by the defendant" (Penal Law § 60.27 [5] [b];see § 60.27 [5] [a]). The People submitted bills representingapproximately $13,000 for the victim's initial medical care and an additional charge ofapproximately $7,000 for her subsequent care, obtained when the victim soughttreatment for increased pain after an impact in the area of the existing orbital fracture.We reject defendant's contention that he should not be held responsible for these latermedical charges because that treatment resulted from another injury. The hearing recordreveals that the later treatment would not have been necessary if not for the orbitalfracture. The sums "reflected the medical expenses actually incurred by the victim as aresult of the assault; as such, they were properly recoverable" (People v Kise, 248AD2d 818, 819 [1998]; seePeople v Ortiz, 148 AD3d 1291, 1292-1293 [2017]; People v Pump, 67 AD3d1041, 1042 [2009], lv denied 13 NY3d 941 [2010]).
Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment and the order are affirmed.
Footnote 1:Defense counselenumerated the elements of each of the charged offenses and argued that none wereproven, but did not specifically assert any of the issues that are now raised.
Footnote 2:There was medicaltestimony that this occurred because the pressure of blowing her nose forced air from thevictim's sinuses through an opening created by a fracture in the orbital wall of thevictim's left eye and into the area around the eyeball.
Footnote 3:The owner of the firstmotel testified that he spoke with defendant on the morning after the attack and thatdefendant then moved out.
Footnote 4:The owner of a nearbybar testified that defendant was at the bar on that evening, and that the owner "kept aneye on [defendant]" because he did not recognize him. The bar owner testified that hethought defendant might already have been drunk when he arrived, that he saw defendantconsume two drinks, and that defendant became so intoxicated that the bar owner and thebartender drove defendant and his car back to the motel.