| People v Lewis |
| 2007 NY Slip Op 09628 [46 AD3d 943] |
| December 6, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Simuel L.Lewis, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered January 8, 2007, upon a verdict convicting defendant of the crimes of attempted assaultin the first degree, assault in the second degree, criminal possession of a weapon in the thirddegree and endangering the welfare of a child.
After stabbing Carlos Sanchez and Kenneth Hawkins with a gravity knife at a day-carecenter, defendant was charged with two counts of attempted assault in the first degree, twocounts of assault in the second degree, two counts of criminal possession of a weapon in the thirddegree and endangering the welfare of a child. A jury found him guilty of one count of attemptedassault in the first degree and one count of assault in the second degree, both as to Sanchez, onecount of criminal possession of a weapon in the third degree for his possession of the gravityknife and endangering the welfare of a child. He was acquitted of the assault counts as toHawkins.
Defendant now appeals, contending that the evidence was legally insufficient to disprove hisjustification defense and support his convictions. We disagree. The evidence at trial establishedthat defendant accosted and threatened Peggy Goodall, Hawkins' mother-in-law, outside theday-care center when she arrived to pick up Hawkins' children. Too intimidated to go [*2]inside after defendant entered the center, Goodall telephonedHawkins to come for his children. Upon arrival, Hawkins and Sanchez, his cousin, spoke withGoodall and then entered the center. Once inside, Hawkins looked through a hallway windowinto an office, saw defendant seated there with two center employees and, although Hawkins anddefendant did not know each other, Hawkins approached the office door. Noticing Hawkinsoutside the door, one of the employees asked defendant if the man outside was waiting for him.In response, defendant got up from his chair, pulled out a knife, opened the door and confrontedHawkins in the hallway. Upon seeing the knife in defendant's hand, Sanchez warned Hawkinsand then wrestled defendant to the floor where they struggled while defendant repeatedly stabbedSanchez in the thigh and knee with the knife.
Despite defendant's claim that he was not the initial aggressor and responded only to protecthimself, there is no evidence that either Hawkins or Sanchez had a weapon or otherwise used orthreatened to use deadly physical force (see Penal Law § 35.15). Also, numerouswitnesses confirmed the testimony of Hawkins and Sanchez describing defendant's spontaneousreaction in pulling out a knife and confronting Hawkins. Viewing this evidence in the light mostfavorable to the People, the jury could conclude that defendant did not reasonably believe that hewas being threatened with deadly physical force and, therefore, his use of deadly physical forceagainst Sanchez was not justified (seePeople v Brooks, 32 AD3d 616, 617 [2006], lv denied 8 NY3d 844 [2007];People v Gilliam, 300 AD2d 701, 702-703 [2002], lv denied 99 NY2d 628[2003]).
The evidence is also legally sufficient to support defendant's assault convictions becausethere can be no genuine dispute that the knife he used was a deadly weapon (see PenalLaw § 10.00 [12], [13]; People v Mothon, 284 AD2d 568, 569 [2001], lvdenied 96 NY2d 865 [2001]). Also, his intent to cause physical injury as to the charge ofassault in the second degree (see Penal Law § 120.05 [2]) and to cause seriousphysical injury as to the charge of attempted assault in the first degree (see Penal Law§§ 110.00, 120.10 [1]) may be inferred from the way he used the knife and theseverity of Sanchez's injuries (seePeople v Terk, 24 AD3d 1038, 1039 [2005]; People v Stoby, 4 AD3d 766, 766-767 [2004], lv denied 2NY3d 807 [2004]).
Similarly, defendant's convictions for criminal possession of a weapon in the third degreeand endangering the welfare of a child are supported by testimony regarding the knife and theproximity of children when the assaults occurred. An expert testified that defendant's knife couldbe operated as a gravity knife as defined in Penal Law § 265.00 (5) (see Penal Law§ 265.01 [1]; § 265.02 [1]; People v Berrier, 223 AD2d 456, 457 [1996],lv denied 88 NY2d 876 [1996]). Also, since eyewitness testimony confirmed that bloodspurted onto the classroom windows through which children at the center were observing theviolent events in the hallway, knowledge of the potential for physical or emotional harm tochildren could reasonably be imputed to defendant in support of his conviction of endangeringthe welfare of a child (see Penal Law § 260.10 [l]; People v Hitchcock, 98NY2d 586, 590-591 [2002]; People v Johnson, 95 NY2d 368, 371-372 [2000]). In lightof this testimony, we further find that defendant's convictions were not against the weight of theevidence.
Defendant next contends that he was denied the right to a fair trial and deprived of dueprocess as a result of the prosecutor's repeated references to him as a "black" male, allegedly forthe sole purpose of classifying him by his race. This issue is unpreserved, however, becausedefendant failed to object to any of the allegedly prejudicial remarks (see People vWilliams, 305 AD2d 703, 703 [2003], lv denied 100 NY2d 600 [2003]). Were we toconsider it, we would find [*3]that most of the prosecutor'sreferences were made to clarify a witness's in-court identification of defendant or occurred wheneyewitnesses were describing their observations of an as yet unidentified "black" person. Also,defendant had argued to the jury in support of his justification defense that he thought Hawkinswas there to punish him for his earlier insults to Goodall. Since Hawkins, who was previouslyunknown to defendant, was not white, but black, the prosecutor's reference during summation todefendant as "the black man" and to Goodall as "the white lady" was fair comment in explainingwhy this defense theory was false (seePeople v Grady, 40 AD3d 1368, 1374-1375 [2007]; People v Beyer, 21 AD3d 592, 595 [2005], lv denied 6NY3d 752 [2005]). While it surely would have been preferable for the prosecutor to distinguishdefendant from the others sitting at the defense table during trial without reference to skin color,we find that none of the references had "the effect of interjecting improper racial considerationsor promoting racial prejudice against defendant" (People v Woods, 278 AD2d 176, 176[2000], lv denied 96 NY2d 764 [2001]; see People v Dominguez, 275 AD2d 468,469 [2000], lv denied 95 NY2d 962 [2000]; People v Ali, 158 AD2d 460, 460[1990], lv denied 76 NY2d 784 [1990]; compare People v Alexander, 94 NY2d382 [1999]).
Defendant also contends that the verdicts convicting him of the crimes of attempted assaultin the first degree and assault in the second degree against Sanchez, but acquitting him of thesame crimes against Hawkins, are inconsistent. However, in addition to being unpreserved(see People v Alfaro, 66 NY2d 985, 987 [1985]), this contention is without merit.Defendant was charged with separate conduct against separate victims (see e.g. People vRayam, 94 NY2d 557, 561 [2000]; People v Murray, 244 AD2d 362, 362 [1997],lv denied 91 NY2d 895 [1998]; People v Kussius, 238 AD2d 731, 732 [1997],lv denied 90 NY2d 941 [1997]). As a result, his acquittal of the alleged crimes againstHawkins did not necessarily negate any of the elements of the crimes against Sanchez(see CPL 300.30 [5]).
Nor is there merit in defendant's contention that the charge of attempted assault in the firstdegree is dismissible as an inclusory concurrent count of assault in the second degree. In additionto being unpreserved, this argument mistakenly assumes that the attempted assault charge wasthe lesser crime. Attempted assault in the first degree is a class C felony (see Penal Law§§ 110.05, 120.10 [1]) while assault in the second degree is a class D felony(see Penal Law § 120.05 [2]). The greater charge could not have been an inclusoryconcurrent count of the lesser one (see CPL 300.30 [4]). Nor would the conversecontention be viable, since the greater crime was an attempt and it surely is possible to attempt tocommit an assault in the first degree without causing the physical injury necessary for assault inthe second degree (see generally Peoplev Alvarez, 38 AD3d 930, 934 [2007], lv denied 8 NY3d 981 [2007]; People v Thomson, 13 AD3d 805,807 [2004], lv denied 4 NY3d 836 [2005]).
Defendant's argument that he was deprived of the right to the effective assistance of counselis also unavailing. The record reveals that defendant's counsel made appropriate objectionsthroughout the trial, vigorously cross-examined the People's witnesses, called a witness in anattempt to discredit a portion of Goodall's testimony, made effective opening and closingstatements, and obtained an advantageous ruling as to the use of defendant's prior conviction. Inaddition, counsel succeeded in obtaining an acquittal on the charges of assault as to Hawkins (see People v Johnson, 40 AD3d1270, 1273 [2007], lv denied 9 NY3d 877 [2007]; People v Cole, 35 AD3d 911, 913[2006], lv denied 8 NY3d 944 [2007]; People v Madison, 31 AD3d 974, 975 [2006], lv denied 7NY3d 868 [2006]).
We have considered defendant's remaining arguments and find them to be without [*4]merit.
Cardona, P.J., Mercure, Crew III and Mugglin, JJ., concur. Ordered that the judgment isaffirmed.