| People v Williams |
| 2007 NY Slip Op 09974 [46 AD3d 1115] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RobertWilliams, Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Peters, J. Appeal from a judgment of the Supreme Court (Sheridan, J.), rendered June 10,2002 in Essex County, upon a verdict convicting defendant of the crimes of assault in the seconddegree (three counts) and obstructing governmental administration in the second degree.
Defendant, a prisoner at the Adirondack Correctional Facility in Essex County, was chargedwith three counts of assault in the second degree and one count of obstructing governmentaladministration in the second degree as a result of a physical altercation involving three correctionofficers on September 13, 2001. Following a jury trial, he was convicted on all charges and,thereafter, sentenced as a second felony offender to concurrent terms of imprisonment of fiveyears for each count of assault, and one year for obstructing governmental administration. Thissentence was to run consecutive to defendant's underlying prison term.
Upon appeal, defendant challenges the sufficiency of the evidence supporting the convictionsfor assault by contending that the People failed to prove that the correction officers sustained"physical injury" within the meaning of Penal Law § 120.05 (7). Applying thewell-established test for a review of this claim (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Betters, 41 AD3d1040, 1041 [2007]), we note that the physical injury required is an " 'impairment of physicalcondition or substantial pain' " (People vChiddick, 8 NY3d 445, 447 [2007], quoting Penal Law § 10.00 [9]; seePeople v Travis, 273 AD2d 544, 548 [2000]).[*2]"[W]hile'slight or trivial pain' is insufficient, the '[p]ain need not, however, be severe or intense to besubstantial' " (People v Rivera, 42AD3d 587, 588 [2007], lv denied 9 NY3d 880 [2007], quoting People vChiddick, 8 NY3d at 447).
Here, Correction Officer Dean LaClair testified that two days after the September 11, 2001terrorist attacks, he heard defendant, an African American of Muslim faith, state, on his way tothe prison mess hall, that "all you white devils should have died in the Trade Center." WhenLaClair interrupted defendant and requested that he produce his prison identification card,defendant told LaClair, "I could kill you." LaClair then contacted his supervisor, GregoryBoynton, for assistance. Boynton and two other correction officers, Michael LeClair and ScottHutchins, responded to the scene.
LeClair, Hutchins and Boynton restrained defendant before escorting him to the specialhousing unit (hereinafter SHU). Since a strip search is a prerequisite to SHU admission, LeClairtook defendant behind a privacy curtain and removed his hand restraints. Defendant then struckLeClair in his left cheek with his elbow, causing LeClair to fall to the floor. Experiencing asevere sharp pain in his cheek area and some swelling, LeClair left work that day, but returned onthe following day. The pain lasted for about two days and the swelling subsided after a couple ofdays.
Boynton testified that when he and Hutchins came to assist LeClair, defendant "cocked back[his arm], a fist was made, and he threw the punch the second my head came through thecurtain." Despite having been punched in the neck, Boynton attempted to restrain defendant,injuring his left knee and tearing the tendons in his right arm. Boynton suffered immediate painfrom the punch which he equated with a severe toothache. It became steady and throbbing,growing worse over time. As a result of this incident, Boynton attended physical therapy forapproximately 1½ months, was prescribed medication, had problems sleeping andcontinued to experience a limited range of motion in his neck.
Hutchins saw defendant hit Boynton. When Hutchins entered the curtained area, defendanthit him in the area of his neck and ear on the left side of his face. He saw a bright flash, almostlost consciousness and suffered from such a severe headache that he had to leave work; he stayedhome the following day and suffered from a slight contusion that was tender for about 10 days.Hutchins visited his personal physician, was given some Tylenol and received no furthertreatment.
Barbara Bashaw, a nurse employed at the facility, testified that her examination of Boyntonrevealed swelling on the side of his neck and his knee, with a limited range of motion in his neck,right wrist and elbow. As to Hutchins, she noted that the left side of his neck was visibly bruisedand swollen. As to LeClair, the left side of his jaw was swollen and bruised, but there was noevidence of bruising around his left eye or cheek. In addition, his blood pressure was high.Defendant's examination revealed a redness and red mark in the area of his right shoulder withoutany other abrasions, bruises or skin breaks.
In our view, this evidence was clearly sufficient for the jury to have concluded that bothBoynton and Hutchins sustained a physical injury within the meaning of Penal Law §10.00 (9) (see People v Porter, 305 AD2d 933, 934 [2003], lv denied 100 NY2d586 [2003]; People v Conseillant, 289 AD2d 1048, 1048 [2001], lv denied 98NY2d 674 [2002]). Further evaluating this evidence in a neutral light and considering defendant'sunequivocal testimony that he did not [*3]assault the correctionofficers, we find that the jury's verdict pertaining to Boynton and Hutchins was not against theweight of the evidence (see People vStudstill, 27 AD3d 833, 834 [2006], lv denied 6 NY3d 898 [2006]; People vPorter, 305 AD2d at 934).
As to LeClair, the evidence was insufficient to meet the requisite objective level of proof todemonstrate physical injury (see People v Thomas, 274 AD2d 761, 762 [2000], lvdenied 95 NY2d 939 [2000]; Peoplev Winchester, 14 AD3d 939, 940 [2005], lv denied 5 NY3d 796 [2005]).However, as there was sufficient evidence demonstrating that defendant intended to causephysical injury to LeClair, defendant should have been convicted of the lesser included offense ofattempted assault in the second degree (see Penal Law §§ 110.00, 120.05[7]).
Finally, there is no merit to defendant's contention that he was denied the effective assistanceof counsel when we consider the totality of the circumstances and the representation provided(see People v Baldi, 54 NY2d 137, 147 [1981]; People v Anderson, 38 AD3d 1061, 1063 [2007], lv denied8 NY3d 981 [2007]). Moreover, there is no viable challenge to defendant's sentence as it fallswithin the statutory parameters and the record reveals no clear abuse of discretion or theexistence of extraordinary circumstances (see People v Studstill, 27 AD3d at 834).
Crew III, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered, that the judgment ismodified, on the law, by reducing defendant's conviction of assault in the second degree undercount two of the indictment to attempted assault in the second degree; vacate the sentenceimposed on said conviction and matter remitted to the Supreme Court for resentencing; and, as somodified, affirmed.