| People v Massey |
| 2007 NY Slip Op 08787 [45 AD3d 1044] |
| November 15, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Asker Massey,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Spain, J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered November 17,2005 in Albany County, upon a verdict convicting defendant of the crimes of burglary in the firstdegree and assault in the third degree.
Following a jury trial, defendant was convicted, as charged, of burglary in the first degreeand assault in the third degree stemming from his conduct on March 24, 2005 in breaking into anapartment in the City of Albany where his sister resided, and assaulting his girlfriend (hereinafterthe complainant). Defendant arrived at the second floor apartment shortly after midnight andrepeatedly rang the doorbell shouting, "I know you're up there . . . Let me in";admitted into the building by another tenant, he kicked down the door to the apartment, breakingthe door frame. Once inside, defendant was asked to leave but refused and, in front of severalwitnesses, proceeded to drag the complainant across the room into a closet, where he kicked herwith his work boots in the head, face and back causing a black eye and bruising. During theassault, he repeatedly yelled, "I told you" and also shouted, "I'll kill you." Defendant then leftwith the complainant's jacket, and was apprehended and arrested by police minutes later wearingthat jacket. After complaining of symptoms related to his diabetes, he was taken to the hospitalfor treatment.[*2]
Defendant testified that he had been drinking at a friend'shouse all day and came to the apartment to pick up the complainant and to get insulin, and beganfeeling weak and the symptoms of diabetic shock. He claimed to have no memory of anythingthat occurred after he reportedly knocked on the upstair's inner apartment door (which he statedwas then opened for him) up until the time that he was apprehended by police, i.e., the entireperiod of the assault and his flight, which he attributed to the combined effects of hisconsumption of alcohol and failure to take his insulin or to eat any food all day.
Upon his convictions, defendant was sentenced to a 12-year prison term on the burglarycount to run concurrently with a one-year term for the assault count. Defendant appeals, and weaffirm.
We are unpersuaded by defendant's claims that the verdict is not supported by legallysufficient evidence or is contrary to the weight of credible evidence (see People vBleakley, 69 NY2d 490, 495 [1987]). Defendant's sufficiency-based challenges were notpreserved given that no grounds were specified in the defense's motion to dismiss at the close ofthe proof (see People v Gray, 86 NY2d 10, 19 [1995]; see also People v Finger,95 NY2d 894, 895 [2000]). In any event, the complainant's and other eyewitness testimony,viewed most favorably to the People, established beyond a reasonable doubt that defendantknowingly entered this dwelling with the intent to commit a crime therein and, while inside,intentionally caused physical injury to the complainant (see Penal Law § 120.00[1]; § 140.30 [2]). Contrary to his claims on appeal, defendant's intent to commit a crimeinside the dwelling was readily inferable from the surrounding circumstances of his conduct,including the violent and unauthorized manner of his entry (see People v Love, 307AD2d 528, 529 [2003], lv denied 100 NY2d 643 [2003]; see also People v Lewis, 5 NY3d546, 552 [2005]; People vJacobs, 37 AD3d 868, 870 [2007]).
We now turn to defendant's challenge to the weight of the evidence. As we cannot say that adifferent finding would have been "unreasonable"—the jury could have crediteddefendant's testimony that he was suffering from diabetic shock or was too intoxicated[FN1]to have acted knowingly or intentionally—we " 'weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony' " (People v Bleakley, 69 NY2d at 495, quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]). According great deference to the jury'sfirst-hand assessment of witness credibility, we perceive no reason to disturb its verdict (see People v Boodrow, 30 AD3d758, 759 [2006], lv denied 7 NY3d 900 [2006]). Notably, defendant's account of abrief memory loss—which conveniently covered only the period of the assault—wasneither credible nor consistent, and was not supported by any medical or other testimony. Indeed,defendant's description of feeling "weak" and "faint" were inconsistent with the violence anddeliberateness of the assault; defendant behaved and communicated in a coherent manner onlyminutes after the assault when apprehended by police, and his own testimony established that theassault came a full five hours after he had last consumed any alcohol and he had administeredfour of the five daily insulin shots prescribed. Thus, we find that the evidence fully supported theverdict (see People v Smith, 27AD3d 894, 897 [2006], lv denied 6 NY3d 898 [2006]).
Next, we find no abuse of discretion in Supreme Court's Sandoval compromiseallowing the People to inquire of defendant, on cross-examination, if he had been convicted in2003 of [*3]assault in the third degree without disclosing theunderlying facts; reference to the fact that it was committed against this complainant wasprecluded (see People v Beverly, 6AD3d 874, 876 [2004], lv denied 3 NY3d 637 [2004]; People v Layman,284 AD2d 558, 560 [2001], lv denied 96 NY2d 903 [2001]). The court properlyconcluded that the conviction was probative of defendant's credibility, which outweighed itspotential for prejudice (which was ameliorated by the redaction of the underlying facts), and"there is no per se rule requiring preclusion whenever prior crimes are similar to or even the sameas those charged in a later prosecution" (People v Layman, 284 AD2d at 560; seePeople v Hayes, 97 NY2d 203, 207-208 [2002]).[FN2]Significant also is that the prosecutor asked only a single question at the end ofcross-examination and did not attempt to impermissibly use it to demonstrate defendant'spropensity, and the court charged the jury that it was relevant only to credibility (see People vPavao, 59 NY2d 282, 292 [1983]). Defendant's further claim that the unobjected totestimony of his sister—that this "wasn't the first time" defendant hit thecomplainant—allowed the jury to infer that the prior assault conviction involved the samecomplainant. Defendant never raised this point at trial or requested a curative instruction and,thus, it is unpreserved for our review; in any event, we are not persuaded.
Defendant's argument that he was denied the effective assistance of counsel due to counsel'sfailure to call medical experts to testify in support of his diabetic shock defense is unavailing, asthere is no indication in this record that such supportive evidence was available or that thedecision not to put on medical testimony "was a prejudicial error rather than a reasonable tacticalchoice" (People v Peake, 14 AD3d936, 937 [2005]; see People vBrandi E., 38 AD3d 1218, 1219 [2007], lv denied 9 NY3d 863 [2007]; People v Smith, 27 AD3d 894,897-898 [2006], lv denied 6 NY3d 898 [2006]). Further, the record reflects that defensecounsel pursued an identifiable defense strategy consistent with defendant's testimony,effectively cross-examined the witnesses and, viewed in totality, provided defendant with"meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]; see People vBenevento, 91 NY2d 708, 712 [1998]).
Finally, we do not find that the 12-year sentence, which fell within the midrange ofpermissible sentences for this class B violent felony, was an abuse of discretion or thatextraordinary circumstances exist to warrant a reduction in the interest of justice (seeCPL 470.15 [6] [b]; see also People v Delgado, 80 NY2d 780, 783 [1992]), givendefendant's lack of remorse and refusal to accept responsibility for this violent assault on thecomplainant, his second known such assault on her in as many years. Further, "[t]he mere factthat a sentence imposed after trial is greater than that offered in connection with plea negotiationsis not proof that defendant was punished for asserting his right to trial" (People v Simon,180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992]). We discern no support inthis record that the sentence imposed evinces any such retaliation or vindictiveness but, rather,find it was based on, among other legitimate sentencing considerations, defendant's criminal pastand the evidence adduced at [*4]trial of defendant's violentconduct (which only fortuitously did not have even more serious consequences) (see People v Chappelle, 14 AD3d728, 729 [2005], lv denied 5 NY3d 786 [2005]; People v Fletcher, 309AD2d 1085, 1086 [2003], lv denied 1 NY3d 571 [2003]).
Defendant's remaining claims are also without merit.
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The jury was charged onintoxication (see Penal Law § 15.25).
Footnote 2: Although this evidence ofdefendant's prior assault on the complainant was not admitted under Molineux, we findthat it might also have been admitted as proof of defendant's intent and motive (see People v Gorham, 17 AD3d858, 860 [2005]; People vPoquee, 9 AD3d 781, 781 [2004], lv denied 3 NY3d 741 [2004]; see also People v Wlasiuk, 32 AD3d674, 676-677 [2006], lv dismissed 7 NY3d 871 [2006]).