| People v Wilder |
| 2021 NY Slip Op 07025 [200 AD3d 1303] |
| December 16, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Titus T. Wilder, Also Known as Primo,Appellant. |
Allen E. Stone Jr., Vestal, for appellant.
Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.),rendered October 10, 2017, upon a verdict convicting defendant of the crimes of attemptedassault in the second degree and assault in the third degree.
In December 2015, based upon allegations that he, among other things, punched, kicked andstomped on the victim, defendant was charged by indictment with one count of attempted assaultin the first degree, one count of assault in the second degree and three counts of intimidating avictim or witness in the third degree. Following motion practice, a four-day jury trial ensued,after which defendant was found guilty of the lesser included offenses of attempted assault in thesecond degree and assault in the third degree.[FN1] Defendant was thereafter sentenced, as asecond felony offender, to a prison term of 2 to 4 years on his conviction of attempted assault inthe second degree and to a lesser concurrent term of incarceration on the assault in the thirddegree conviction. Defendant appeals, solely arguing that the verdict was against the weight ofthe evidence.
In assessing whether a verdict is supported by the weight of the evidence, we must firstdetermine whether, based upon all of the credible evidence, a different finding would have beenunreasonable; if not, we must then "weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony" todetermine whether the jury gave "the evidence the weight it should be accorded" (People v Romero, 7 NY3d 633,643-644 [2006] [internal quotation marks and citations omitted]; see People v Young, 160 AD3d1206, 1206-1207 [2018], lv denied 31 NY3d 1155 [2018]). In conducting a weightof the evidence review, we view the evidence in a neutral light (see People v Sanchez, 32 NY3d1021, 1023 [2018]; People vDancy, 87 AD3d 759, 761 [2011]). However, we also accord "[g]reat deference" to thejury's credibility determinations, given that the jurors have the "opportunity to view thewitnesses, hear the testimony and observe demeanor" (People v Bleakley, 69 NY2d 490,495 [1987]; see People v Romero, 7 NY3d at 644).
As relevant here, to sustain the conviction for attempted assault in the second degree, thePeople were required to prove that defendant intended to cause physical injury to the victim bymeans of a dangerous instrument and that he "engage[d] in conduct which tend[ed] to effect thecommission of such crime" (Penal Law § 110.00; see Penal Law§ 120.05 [2]; cf. People vAgron, 106 AD3d 1126, 1128 [2013], lv denied 21 NY3d 1013 [2013]). As forassault in the third degree, the People had to prove that, "[w]ith intent to cause physical injury toanother person, [defendant] cause[d] such injury to such person" (Penal Law§ 120.00 [1]). " 'Physical injury' means impairment of physical condition orsubstantial pain" (Penal Law § 10.00 [9]). Finally, given defendant's invocation ofthe ordinary [*2]defense of justification, the People bore theburden of proving beyond a reasonable doubt that defendant was not justified in his actions(see Penal Law § 25.00 [1])—that is, as relevant here, that he did notreasonably believe that using physical force against the victim was necessary to defend himselffrom what he reasonably believed to be the use or imminent use of unlawful physical force bysuch person (see Penal Law § 35.15 [1]).
At trial, the victim testified that he and defendant had a friend in common (hereinafter themutual friend) and that, on the night in question, he went to the mutual friend's house to look atan issue with defendant's truck. The victim stated that defendant, perhaps dissatisfied with workthat the victim had previously done on the truck, appeared angry with him and reacted violentlywhen he relayed that he needed to retrieve his tools to fix the issue. According to the victim,defendant began repeatedly punching him in the head, which, after 10 or 12 punches, knockedhim from the chair on which he was sitting onto the ground. The victim testified that defendant,who was wearing Timberland boots, then proceeded to punch and kick him and stomp on hishead. In the victim's estimation, he endured the attack for three to five minutes before managingto get away, walk to his home and call 911. The 911 call, in which the victim reports thatdefendant kicked and stomped him, was admitted into evidence and played for the jury. Theemergency medical technician who responded to the 911 call testified that the victim reportedhaving been punched and kicked, but not that he had been stomped. Similarly, the lawenforcement officer who responded to the scene and the emergency room physician who treatedthe victim testified that defendant did not report having been stomped. With respect to his allegedinjuries, the victim's testimony, as well as the testimony from the emergency room physician,demonstrated that the victim sustained fractures to various facial bones, including fractures to hisright eye socket. The victim further testified that, since the attack, he sees floating dots in his lefteye and has a ringing in his ear.
In furtherance of his defense, defendant presented the testimony of the mutual friend, whotestified that he heard defendant and the victim discussing work that needed to be done todefendant's truck. He stated that he saw the victim raise his hand at defendant[FN2] and described thereafterobserving defendant and the victim "hugging" in a wrestling-type manner, falling together at onepoint. The mutual friend testified that he did not observe anyone kicking or stomping and thatboth defendant and the victim "got up and walk[ed] away" afterward. According to the mutualfriend, the victim smelled of alcohol and was drinking on the night in question.
In our view, given the differing accounts offered by the victim and the mutual friend, as wellas the fact that the victim did not report the alleged [*3]stompingto the emergency responders or the emergency room physician, it would not have beenunreasonable for the jury to have reached a different verdict (see People v Bush, 184 AD3d 1003, 1006 [2020], lv denied35 NY3d 1093 [2020]). However, the differences and/or inconsistencies in the victim's and themutual friend's respective accounts were fully explored and challenged during their direct andcross-examinations. Contrary to defendant's contentions, any inconsistencies between the victim'stestimony and prior reports were minor and did not render his testimony inherently unbelievableor incredible as a matter of law (seePeople v Delbrey, 179 AD3d 1292, 1294 [2020], lv denied 35 NY3d 969 [2020];People v Ryder, 146 AD3d1022, 1025 [2017], lv denied 29 NY3d 1086 [2017]). Simply stated, the competingproof presented a credibility question for the jury, one which it resolved in favor of the People.Viewing the evidence in a neutral light and according deference to the jury's credibilitydeterminations, we find that the weight of the evidence supports the jury's rejection ofdefendant's justification defense, as well as its determination that defendant committed thecrimes of attempted assault in the second degree and assault in the third degree (see PenalLaw §§ 35.15 [1]; 110.00, 120.00 [1]; 120.05 [2]; People v Ingram, 95 AD3d 1376,1377 [2012], lv denied 19 NY3d 974 [2012]; People v Taylor, 276 AD2d 933,935-936 [2000], lv denied 96 NY2d 788 [2001]). As such, we will not disturb thejudgment of conviction.
Garry, P.J., Lynch, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:At the close of the People'sproof, defendant moved for a trial order of dismissal. County Court found that the evidence waslegally insufficient to establish the element of serious physical injury so as to convict defendantof assault in the second degree under count 2 of the indictment (see Penal Law§ 120.05 [1]). Therefore, on that count, the jury considered the lesser includedcharges of attempted assault in the second degree and assault in the third degree.
Footnote 2:During his direct examination,the mutual friend did not assert that the victim was holding anything in his raised hand. However,upon cross-examination, the mutual friend testified that the victim "had a screwdriver in hishand."