| People v Serrano |
| 2021 NY Slip Op 07037 [200 AD3d 1340] |
| December 16, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Luis Serrano, Appellant. |
Steven M. Sharp, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered May 17, 2019, upon a verdict convicting defendant of the crimes of assault in thefirst degree, criminal possession of a weapon in the third degree and criminal mischief in thefourth degree.
In July 2018, based upon allegations that he threw a piece of asphalt through the window of acar in which the victim was sitting, thereby shattering the glass and striking the victim in thehead, defendant was charged with attempted murder in the second degree, assault in the firstdegree, criminal possession of a weapon in the third degree and criminal mischief in the fourthdegree. After defendant unsuccessfully moved to suppress statements that he made to police, aswell as two pretrial identifications of him from a photo array, the matter proceeded to a jury trial.Defendant was ultimately convicted of assault in the first degree, criminal possession of aweapon in the third degree and criminal mischief in the fourth degree.[FN1] He was thereafter sentenced, as a second felonyoffender, to a prison term of 15 years, followed by five years of postrelease supervision, for hisconviction of assault in the first degree, and to lesser concurrent prison terms on his remainingconvictions. Defendant appeals.
We affirm. Defendant challenges his conviction of assault in the first degree as unsupportedby legally sufficient evidence and the entire verdict as against the weight of the evidence.Initially, defendant's legal sufficiency challenge is preserved only to the extent that he argues thatthe People failed to prove that he intended to cause serious physical injury to the victim and thathe in fact caused such serious physical injury (see People v Iovino, 149 AD3d 1350, 1351 [2017], lvdenied 30 NY3d 950 [2017]; Peoplev Thiel, 134 AD3d 1237, 1238 [2015], lv denied 27 NY3d 1156[2016]).[FN2] Nevertheless,as part of our weight of the evidence review, we necessarily assess whether each element ofassault in the first degree, as charged in the indictment, was proven beyond a reasonable doubt(see People v Gray, 151 AD3d1470, 1472 [2017], lv denied 30 NY3d 949 [2017], cert denied 583 US&mdash, 138 S Ct 1295 [2018]; People v Iovino, 149 AD3d at 1351).
In assessing a challenge to the legal sufficiency of the evidence, this Court views theevidence in the light most favorable to the People and evaluates "whether there is any valid lineof reasoning and permissible inferences which could lead a rational person to the conclusionreached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proofand burden requirements for every element of the crime charged" (People v Bleakley, 69NY2d 490, 495 [1987] [citation omitted]; see People v Abussalam, 196 AD3d 1000, 1004 [2021]; People v Terry, 196 AD3d 840,841 [2021], lv denied 37 NY3d 1030 [2021]). To determine whether a verdict is againstthe weight of the evidence, this Court "[*2]must first determinewhether, based on all the credible evidence, a different finding would not have been unreasonableand, if not, then weigh the relative probative force of conflicting testimony and the relativestrength of the conflicting inferences that may be drawn from the testimony" (People vTerry, 196 AD3d at 841 [internal quotation marks and citations omitted]; see People vBleakley, 69 NY2d at 495; People v Abussalam, 196 AD3d at 1004).
For a conviction of assault in the first degree, the People bear the burden of proving, asrelevant here, that, "[w]ith intent to cause serious physical injury to another person," thedefendant "cause[d] such injury to such person or to a third person by means of a deadly weaponor a dangerous instrument" (Penal Law § 120.10 [1]). Serious physical injury meansimpairment of a person's physical condition "which creates a substantial risk of death, or whichcauses death or serious and protracted disfigurement, protracted impairment of health orprotracted loss or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]; see Penal Law § 10.00 [9]). For a conviction ofcriminal possession of a weapon in the third degree, the People must prove that the defendantwas previously convicted of a crime and that he or she has committed the offense of criminalpossession of a weapon in the fourth degree (see Penal Law § 265.02 [1]),which requires proof that the defendant knowingly possessed a dangerous or deadly instrument orweapon with intent to use it unlawfully against another (see Penal Law§§ 15.05 [2]; 265.01 [2]; People v Saunders, 85 NY2d 339, 341-342[1995]; People v Vandenburg, 189AD3d 1772, 1773 [2020], lv denied 36 NY3d 1054 [2021]). Further, for a convictionof criminal mischief in the fourth degree, the People must prove that the defendant, "having noright to do so nor any reasonable ground to believe that he or she has such right, . . .[i]ntentionally damages property of another person" (Penal Law § 145.00 [1]). Withrespect to the charges of assault in the first degree and criminal possession of a weapon in thethird degree, a dangerous instrument "means any instrument . . . which, under thecircumstances in which it is used, . . . is readily capable of causing death or otherserious physical injury" (Penal Law § 10.00 [13]). "In determining whether aparticular item [may be considered a dangerous instrument], the manner in which the item wasused is of paramount consideration, in recognition that an object which is innocuous when usedfor its proper purpose may become dangerous when used to cause injury" (People v Ray,273 AD2d 611, 613 [2000] [citations omitted]; see People v Carter, 53 NY2d 113, 116[1981]).
The victim testified that, on the evening in question, he was parked on a street in the City ofSchenectady, Schenectady County when he heard a knock on the vehicle's window and sawdefendant, whom he later identified in a photo array, standing outside with an object in [*3]his hand. The victim testified that, based upon a past incident wherehe stole drugs and money from a delivery that he had made on defendant's behalf and defendant'sthreatening conduct toward him since, he became nervous and turned to unbuckle his seat beltand exit the car. The victim testified, however, that the next thing he remembers was waking upin the hospital "in really bad pain."[FN3]
To establish the events leading up to the victim's hospitalization, the People relied upontestimony from a father and son who witnessed the incident (hereinafter referred to as the oldereyewitness and the younger eyewitness, respectively), a 911 dispatcher, the police officer whoresponded to the 911 call and two detectives involved in the investigation, as well asdocumentary evidence and certain inculpatory statements made by defendant following theincident. Specifically, the older eyewitness testified that, on the night in question, he observed anindividual wearing dark clothing approach the driver side door of the vehicle and that, withinseconds, he heard a loud noise and glass shattering. He stated that the younger eyewitness wasarriving home at the time of the incident and that he thereafter called 911, relaying hisobservations as well as those of the younger eyewitness. The older eyewitness asserted that, uponprompting from the 911 dispatcher, he looked inside the vehicle and "[s]aw the victim slumpedover in the passenger seat with blood coming out from behind his ear." The younger eyewitnesssimilarly testified that, as he was driving down the road, about 100 feet away from the victim'svehicle, he heard a loud noise and saw the glass of the driver side window shatter. The youngereyewitness stated that he observed an individual, whom he later identified in a photo array asdefendant, beside the shattered car window and saw that individual run past him. The youngereyewitness testified to looking inside the vehicle and thinking that the victim was dead becausehe saw "a pretty good wound behind [the victim's] ear," with "some meat hanging out." Arecording of the 911 call was received into evidence and played for the jury during thedispatcher's testimony.
The police officer who responded to the 911 call testified that, upon arriving at the scene, heobserved a vehicle parked with the engine running and a shattered driver side front window. Hestated that the victim was slumped over the middle console area bleeding from his head and wasuncommunicative. The officer testified that, after calling dispatch to expedite the medics, hebroke the passenger side window to gain entry into the vehicle and turn the engine off andobserved "a chunk of pavement in the car." He described the asphalt as being "about the size of asmall dinner plate." A detective testified to arriving at the scene and observing "a loose piece ofgravel or asphalt from the road" on the passenger side of the vehicle. Photographs of thedamaged vehicle and the asphalt [*4]were admitted into evidenceat trial. Another detective testified that defendant was identified as a suspect during the course ofthe investigation and that he subsequently conducted an interview of defendant. He stated that,during that interview, he showed defendant still images pulled from a nearby pole surveillancecamera around the time of the incident and that defendant identified himself in several of theimages, including one in which he is depicted bending down in an area with broken chunks ofpavement.
With respect to the victim's injuries, a trauma surgeon at the hospital testified that a CT scanof the victim's brain revealed "a fairly complex skull fracture," which began at the mastoidprocess, extended into the temporal skull and continued into the basilar skull, where bloodvessels and other major nerves enter the brain. The trauma surgeon testified that the victim alsosuffered a brain contusion and a subarachnoid hemorrhage in the cerebellum and occipital areas,which affect vision, locomotion and balance. He stated that, on day three of the victim'shospitalization, it was discovered that the victim had a venous sinusthrombosis—otherwise known as a clot—in the vasculature of the brain, whichimpedes blood flow out of the brain. The trauma surgeon further stated that the victim had apalsy of the cranial nerve, which affects movement of the eyes. According to the trauma surgeon,the victim's injuries were caused by blunt force.
As to his injuries, the victim testified that, since the incident, he has not been able to hear outof his left ear, the entire left side of his face is completely numb and food regularly falls out ofhis mouth when he is eating or drinking. He stated that, when he first woke up in the hospital, hecould not see out of his left eye, which was crossed and facing to the right. He testified that,although he can now see out of his left eye and it is no longer crossed, his vision in that eyeremains blurred and his eye drifts to the right at times. According to the victim, his left eye isdiscolored and he experiences itching and throbbing in that eye. The victim further testified tohaving balance issues, which made it difficult for him to walk at first and continues to cause himproblems from time to time.
Viewing the evidence in the light most favorable to the People, we find that there was legallysufficient evidence from which a rational jury could conclude that defendant committed assaultin the first degree (see Penal Law § 120.10 [1]). The medical evidenceestablished that the victim sustained a serious physical injury caused by blunt force trauma, andthere was ample evidence to conclude that defendant inflicted such injury by striking the victimin the head with a piece of asphalt, which, under the circumstances of its use, was a dangerousinstrument that was readily capable of causing serious physical injury (see Penal Law§§ 10.00 [9], [10], [13]). Defendant's intent to cause serious [*5]physical injury to the victim "was readily inferable both from hisactions and the severity of the victim's injuries" (People v Abussalam, 196 AD3d at1006). As to defendant's weight of the evidence argument, we find that, given the overwhelmingevidence of defendant's guilt, a different verdict would have been unreasonable (see People v Hadfield, 119 AD3d1224, 1225-1226 [2014], lv denied 24 NY3d 1002 [2014]; People v Clark,284 AD2d 725, 726-727 [2001]). In any event, even if a different result would have beenreasonable, viewing the evidence in a neutral light and according deference to the jury'scredibility determinations, the verdict is amply supported by the weight of the evidence(see Penal Law §§ 120.10 [1]; 145.00 [1]; 265.02 [1]; People v McCabe, 182 AD3d 772,774 [2020]).
Defendant also contends that he was deprived of a fair trial as a result of the People'simproper elicitation of testimony—from the detective who interviewed him—thathe invoked his right to counsel and his right against self-incrimination. A defendant's invocationof his or her right against self-incrimination and/or his or her right to counsel during a custodialinterrogation may not be used against him or her as part of the People's case-in-chief (see People v Lentini, 163 AD3d1052, 1054 [2018]; People vJohnson, 70 AD3d 1188, 1190 [2010]; People v Murphy, 51 AD3d 1057, 1058 [2008], lv denied11 NY3d 792 [2008]). This is because such evidence "creates a prejudicial inference ofconsciousness of guilt" (People vHunt, 18 AD3d 891, 892 [2005]; see People v Lentini, 163 AD3d at 1054; People v Demagall, 114 AD3d189, 202 [2014], lv denied 23 NY3d 1035 [2014]). However, the People's improperelicitation of the prejudicial evidence does not automatically result in a reversal of the judgmentof conviction, even in the absence of a curative instruction or in the face of a deficient curativeinstruction (see e.g. People vFlower, 173 AD3d 1449, 1456 [2019], lv denied 34 NY3d 931 [2019]; People v Dashnaw, 85 AD3d1389, 1393 [2011], lv denied 17 NY3d 815 [2011]; People v Murphy, 79 AD3d 1451,1453 [2010], lv denied 16 NY3d 862 [2011]; but see People v Knowles, 42 AD3d 662, 664 [2007]).[FN4] Rather, any such constitutionalerror is subject to a harmless error analysis (see People v Peguero-Sanchez, 29 NY3d 965, 967 [2017];People v Murphy, 79 AD3d at 1453; People v Hunt, 18 AD3d at 892), whichrequires this Court to consider whether there was overwhelming proof of the defendant's guiltand whether there was any reasonable possibility that the People's error may have contributed tothe defendant's conviction (see People v Crimmins, 36 NY2d 230, 231 [1975]; Peoplev Flower, 173 AD3d at 1456).
Here, there is no doubt that the People pursued an improper line of questioning by asking thedetective who conducted defendant's custodial interrogation whether defendant indicated at somepoint during the interview that he no longer wanted to talk with the detective and wished [*6]to speak with an attorney (see People v Viera, 133 AD3d 622, 624 [2015], lv denied26 NY3d 1151 [2016]; People v McLean, 243 AD2d 756, 756 [1997], lv denied91 NY2d 928 [1998]). We, however, find the People's improper and prejudicial questioning to beharmless beyond a reasonable doubt.
The proof of defendant's guilt was overwhelming. Additionally, under all of thecircumstances of this case, we are convinced that there is no reasonable possibility that thePeople's brief—yet improper—inquiry and elicitation of the prejudicial evidencemight have contributed to the judgment of conviction. The People's improper line of questioningwas not pervasive, and, following the detective's prejudicial testimony, the People made noattempt to highlight or exploit his testimony (see People v Masi, 151 AD3d 1389, 1390-1391 [2017], lvdenied 30 NY3d 1062 [2017]; People v McLean, 243 AD2d at 757). Moreover,although defense counsel declined County Court's offer to give a curative instruction to the jury,stating that he believed it to be in defendant's "best interest to just let it go,"[FN5] County Court proactively tookother measures to prevent any further prejudice to defendant. Indeed, following the sidebar,County Court sent the jury to the jury room so that the People could—outside the presenceof the jury—instruct the detective to avoid any further testimony about defendant havinginvoked his rights to counsel and to remain silent. Accordingly, upon consideration of all of theforegoing, we find that the People's error was harmless beyond a reasonable doubt (seePeople v Flower, 173 AD3d at 1456; People v Viera, 133 AD3d at 624-625).
Next, defendant argues that the People impermissibly placed his criminal history before thejury by eliciting testimony that all of the photos included in the photo array that was shown to thevictim and the younger eyewitness were taken from the "RICCI system"—a database thatcollects mug shots from New York. Although evidence of a witness's identification of adefendant in a properly conducted photo array procedure is admissible in the People'scase-in-chief (see CPL 60.25, 60.30), the concern remains that a jury may infer from thephoto array that the defendant was previously convicted of a crime (see generally People vCaserta, 19 NY2d 18, 21 [1966]). To ameliorate such concern, the defendant may request alimiting instruction, either at the time of the identification and/or during the trial court's finalinstructions (see CJI2d[NY] Identification—Identification by PictorialRepresentation).
As the People correctly point out, the detective who compiled the photo array neverexplicitly testified that the photograph of defendant was a mug shot. However, the questionsasked by the People and the answers given by the detective can lead to no other conclusion. Thus,under the circumstances of this case, we agree that the testimony was improper and that CountyCourt should have sustained defendant's objection[*7], struck thetestimony and issued a limiting instruction at that moment, rather than doing so after additionaltestimony. However, we find any such error in this regard to be harmless, considering theoverwhelming evidence of defendant's guilt and the absence of any significant probability thatthe jury would have acquitted defendant but for the error (see generally People vWoolley, 53 AD2d 779, 779 [1976]).
Defendant further challenges County Court's denial of his request to charge assault in thethird degree (see Penal Law § 120.00) as a lesser included offense of assaultin the first degree. "A defendant is entitled to a lesser included offense charge upon request when(1) 'it is impossible to commit the greater crime without concomitantly committing the lesseroffense by the same conduct' and (2) 'there [is] a reasonable view of the evidence to support afinding that the defendant committed the lesser offense but not the greater' " (People v Nisselbeck, 85 AD3d1206, 1208 [2011], quoting People v Van Norstrand, 85 NY2d 131, 135 [1995]).Here, although it is impossible to commit assault in the first degree without concomitantlycommitting assault in the third degree (see People v Cruz, 153 AD3d 1271, 1272 [2017], lv denied30 NY3d 1059 [2017]; see generally People v Green, 56 NY2d 427, 433 [1982]), therewas no reasonable view of the evidence that defendant acted without intent to cause seriousinjury (see People v Cruz, 153 AD3d at 1272; People v Eagleston, 194 AD2d623, 623 [1993]) or that the victim's injuries were caused by anything other than a dangerousinstrument (see People v Soriano,121 AD3d 1419, 1423 [2014]; People v Williams, 252 AD2d 823, 824 [1998], lvdenied 92 NY2d 1040 [1998]). Accordingly, County Court properly declined to chargeassault in the third degree as a lesser included offense of assault in the first degree.
Defendant's remaining contentions do not warrant extended discussion. Defendant'sargument that the People improperly elicited testimony that exceeded the scope of CountyCourt's Molineux ruling is unpreserved for our review (see People v Cox, 129 AD3d1210, 1214 [2015], lv denied 26 NY3d 966 [2015]; People v Williams, 101 AD3d1730, 1731 [2012], lv denied 21 NY3d 1021 [2013]) and, in any event, is lacking inmerit (see People v Vanguilder, 130AD3d 1247, 1250 [2015], lv denied 27 NY3d 1008 [2016]). To the extent thatdefendant's brief can be read to raise a claim of ineffective assistance of counsel, uponconsideration of the totality of defense counsel's representation, we are satisfied that defendantreceived meaningful representation (seePeople v Kalabakas, 183 AD3d 1133, 1145 [2020], lv denied 35 NY3d 1067[2020]; People v Watson, 174 AD3d1138, 1141 [2019], lv denied 34 NY3d 955 [2019]). Lastly, with respect todefendant's assertion that the sentence imposed upon him was harsh and excessive, we discern noabuse of discretion or extraordinary circumstances that would justify a reduction of the sentence[*8]in the interest of justice (see People v Campbell, 196 AD3d 834, 840 [2021], lvdenied 37 NY3d 1025 [2021]; People v Coppins, 173 AD3d 1459, 1464 [2019], lv denied34 NY3d 929 [2019]). As there is no basis upon which to disturb the judgment of conviction, weaffirm.
Garry, P.J., Lynch and Reynolds Fitzgerald, JJ., concur.
Colangelo, J. (dissenting). I respectfully dissent. It is beyond cavil that the constitutionalrights of a defendant to counsel and to remain silent are central to our system of justice and toguarantee a fair trial. Accordingly, a prosecutor's violation of those rights by eliciting, on thePeople's direct case, the fact that a defendant previously invoked those rights has beenconsistently viewed by the courts with a jaundiced eye, whether the prosecutor acted with intentor inadvertence (see People vKnowles, 42 AD3d 662, 665 [2007] ["It is axiomatic that a defendant's invocation of his(or her) right to counsel during custodial interrogation may not be used against him (or her) bythe People as part of their case-in-chief"]; see also People v De George, 73 NY2d 614,618-619 [1989]; People v Flower,173 AD3d 1449, 1456 [2019], lv denied 34 NY3d 931 [2019]).
The majority does not take issue with this basic proposition. Where I part company with themajority is with respect to the consequences of this transgression absent a timely curativeinstruction by the trial court. The majority would have this Court engage in a harmless erroranalysis, whereas I would follow this Court's articulation in People v Knowles (42 AD3dat 665), rejecting such an analysis if the trial court fails to provide "prompt and emphatic curativeinstructions that the jury may not draw any adverse inferences from [the] defendant's request forcounsel." As County Court failed to do so here, defendant's conviction should be reversed.
In my view, the rights violated by the People at trial are so fundamental and the potentialimpact of such a violation on the jury so potentially prejudicial that a harmless error analysisdoes not serve as an adequate safeguard. Whether the People sought to draw the jury's attentionto or otherwise capitalize on such statements by defendant is of no moment. The onus is, as itshould be, on the trial court to neutralize the effect of the breach of such rights at trial by issuing"prompt and emphatic curative instructions" (id.)—something County Court didnot do here. Under such circumstances, this Court should not sanction the last refuge ofconstitutional violations, the harmless error analysis. As the language of this Court inKnowles implies, whether evidence of guilt, when evaluated on a cold record on appeal,is overwhelming may be seen in a markedly different light by a jury that has the evidencepresented to it, free from the taint of the constitutional violation, or, at the very least, its effectsattenuated by appropriate judicial intervention. For these reasons, I would reverse and order anew trial[*9].
Ordered that the judgment is affirmed.
Footnote 1:At the close of the People'sproof, County Court dismissed the charge of attempted murder in the second degree asunsupported by legally sufficient evidence.
Footnote 2:To the extent that defendantargues that his conviction of criminal possession of a weapon in the third degree is unsupportedby legally sufficient evidence, such argument was not preserved by his motion for a trial order ofdismissal (see People v Rudge, 185AD3d 1214, 1214 [2020], lv denied 35 NY3d 1070 [2020]; People v Johnson, 172 AD3d1628, 1629 n 2 [2019], lv denied 34 NY3d 951 [2019]).
Footnote 3:The victim and his wife testifiedthat, after the incident, efforts were made on defendant's behalf to encourage the victim to recanthis statements to police. Following these efforts, the victim made a statement that he wasdropping the charges.
Footnote 4:To the extent that People vKnowles (42 AD3d at 664) holds otherwise, that case should no longer be followed.
Footnote 5:Defense counsel should not bepermitted to decline a curative instruction and thereby create the possibility of reversible error onappeal.