| People v Zindle |
| 2008 NY Slip Op 01654 [48 AD3d 971] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian T.Zindle, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (John F. Lambert of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Otsego County (Burns, J.),rendered September 1, 2006, upon a verdict convicting defendant of the crime of assault in thesecond degree.
On July 10, 2005, defendant went to a trailer in the Town of Oneonta, Otsego County wherehe used to live with his girlfriend, Lucinda Thompson, to retrieve some of his personalbelongings. She was not home at the time, but had given him permission to enter. She had alsomade arrangements with Christopher Smith, the father of her two children, to babysit that day.Smith had taken the children to a neighbor's house and was returning to Thompson's trailer whenhe noticed defendant enter. Upon hearing a commotion, Smith went inside the trailer and he soonbecame involved in a physical altercation with defendant, during which Smith was repeatedlystabbed with a kitchen knife. When Smith was finally able to subdue defendant and retrieve theknife, defendant fled the scene. Defendant later admitted to police that he had stabbed Smith.
Defendant subsequently waived indictment and was charged in a superior court informationwith assault in the second degree. Following a jury trial, he was found guilty of the charge andwas sentenced to a prison term of seven years, to be followed by three years of postreleasesupervision. He now appeals.[*2]
Initially, defendant asserts that because he did not intendto injure Smith, the verdict finding him guilty of assault in the second degree is not supported bylegally sufficient evidence. However, given defendant's failure to make a particularized motion todismiss the case on this basis, he has failed to preserve the claim for our review (see People v Salaam, 46 AD3d1130, 1131 [2007]; People vWhite, 41 AD3d 1036, 1037 [2007], lv denied 9 NY3d 965 [2007]).
Defendant also contends that the verdict is against the weight of the evidence. In undertakingthis inquiry, this Court must first determine "[i]f based on all the credible evidence a differentfinding would not have been unreasonable" (People v Bleakley, 69 NY2d 490, 495[1987]; see People v Romero, 7NY3d 633, 643 [2006]). If not, this Court must then "like the trier of fact below, 'weigh therelative probative force of conflicting testimony and the relative strength of conflicting inferencesthat may be drawn from the testimony' " (People v Bleakley, 69 NY2d at 495, quotingPeople ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People vRomero, 7 NY3d at 643).
Turning to the evidence presented at trial, Smith testified that when he entered the trailerafter hearing the sound of something breaking, defendant immediately approached him at closerange and demanded that he leave. Smith stated that he "brushed [defendant] back" and told himto get out of his face. He stated that defendant responded by thrusting a knife into his abdomenand continuing to stab him elsewhere. Smith testified that a struggle ensued which ended with thetwo men lying on the floor and defendant finally surrendering the knife and leaving the scene.Smith's version of the manner in which the altercation started was corroborated by the onlyeyewitness, an acquaintance who had accompanied him to the trailer.
Defendant, on the other hand, testified that Smith was the aggressor. According to him,Smith was infuriated when defendant asked Smith to leave the trailer and he punched defendantin the face, grabbed him by the throat, threw him to the floor and proceeded to "stomp" him.Defendant stated that while he was on the floor being beaten, he reached for a knife that he hadplaced on a nearby chair before Smith had entered the residence and "hurled it," stabbing Smith.He stated that he did not intend to hurt Smith, but wanted Smith to get off of him. Defendant'sbrother did not witness the start of the altercation, but entered the trailer while the two men wereon the floor and, upon seeing that Smith was cut, left to call for help. According to a neighborwho saw defendant with blood on him immediately after he fled the scene, defendant proclaimedthat he had "stabbed the mother f. . .*r twice."
Viewing the evidence in a neutral light and acknowledging that "[g]reat deference isaccorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observedemeanor" (People v Bleakley, 69 NY2d at 495), we conclude that there was evidencepresented for the jury to find defendant guilty of assault in the second degree. With regard to hisintent and notwithstanding his claim to the contrary, defendant's intent to cause physical injury toSmith (see Penal Law § 120.05 [2]) may be inferred by defendant's conduct and thesurrounding circumstances (see People v Steinberg, 79 NY2d 673, 682 [1992]; People v Terk, 24 AD3d 1038,1039 [2005]). Here, intent is established by Smith's testimony and that of the acquaintance, aswell as defendant's actions before, during and after the incident. Consequently, we find thatdefendant's conviction of assault in the second degree is not against the weight of the evidence.
Defendant further contends that, because he used the knife against Smith in self-defense,County Court erroneously refused to charge the jury on the defense of justification. Preliminarily,we note that "[a] justification defense is established for the use of deadly physical [*3]force where the defendant reasonably believed that such force wasnecessary to protect himself or herself from what he or she reasonably believed was the use orimminent use of deadly physical force by the other person" (People v Brooks, 32 AD3d 616, 617 [2006], lv denied 8NY3d 844 [2007]; see Penal Law § 35.15 [1], [2]). However, a defendant is notentitled to a jury charge on justification if, viewing the evidence in the light most favorable to thedefendant, " 'no reasonable view of the evidence establishes the elements of the defense' " (People v Grady, 40 AD3d 1368,1371 [2007], lv denied 9 NY3d 923 [2007], quoting People v Reynoso, 73 NY2d816, 818 [1988]).
Even accepting as true defendant's testimony that Smith was the aggressor, Smith wasunarmed and defendant never stated that he feared for his life or that Smith tried to use the knifeor any other dangerous instrumentality against him. Thus, it cannot be said that Smith useddeadly physical force. Defendant's use of a kitchen knife to stab Smith, on the other hand, didamount to the use of deadly physical force (see People v Jones, 24 AD3d 815, 816 [2005], lv denied 6NY3d 777 [2006]). Inasmuch as the evidence does not establish that defendant was justified inusing deadly physical force under the circumstances presented, County Court did not err inrefusing to charge the jury on the justification defense.
Defendant's remaining contentions, that he was denied the effective assistance of counsel andthat his sentence is harsh and excessive, have been considered and are without merit.
Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.