| People v Clark |
| 2008 NY Slip Op 03999 [51 AD3d 1050] |
| May 1, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ronald Clark,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Bradley A. Sherman of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered October4, 2006 in Albany County, upon a verdict convicting defendant of the crimes of aggravatedcriminal contempt, criminal contempt in the first degree and assault in the third degree.
On April 6, 2006, the victim, a taxi cab driver, returned to the garage at the end of her shift at6:00 a.m. where defendant, the father of two of her children and against whom she had an orderof protection filed on March 9, 2006, was waiting for her. Defendant was allegedly upset becausethe victim had refused to pick him up when he called for a cab and because two of the victim'smale coworkers were in her cab. The victim insisted that she and defendant go to pick up one oftheir children, who defendant was supposed to be watching, so they took a cab, driven by one ofthe victim's coworkers, to the apartment of defendant's girlfriend to get the child. The victimtestified that, when defendant brought their child out to the cab where she was waiting, defendantgot back into the cab, pulled out a knife, placed it on his lap and told the victim that she was notleaving the cab until they talked. Defendant asked the cab driver to drop them off at a bus stop.The victim testified that, after she placed the child in the bus shelter, defendant punched,elbowed and kicked her and grabbed her cellular telephone and $50 cash. A passing city busdriver noticed that the victim was distraught and radioed another bus on the route asking thatdriver to check on the situation. The second driver asked the victim if she [*2]needed help and the victim requested that he call the police. Thevictim testified that defendant then fled when he noticed the bus driver calling the police. Afterthe police arrived on the scene, the victim was transported to the hospital, where she was treatedfor her injuries and released.
Defendant was charged with the crimes of robbery in the third degree, aggravated criminalcontempt, criminal contempt in the first degree, assault in the third degree and menacing in thesecond degree. Following a jury trial, defendant was convicted of aggravated criminal contempt,criminal contempt in the first degree and assault in the third degree. Defendant was sentenced asa second felony offender to prison terms of 3½ to 7 years for the conviction of aggravatedcriminal contempt, 2 to 4 years for the conviction of criminal contempt in the first degree andone year for the conviction of assault in the third degree, all to be served concurrently. Defendantnow appeals and we affirm.
In determining whether defendant's convictions were against the weight of the evidence, "[i]fbased on all the credible evidence a different finding would not have been unreasonable"(People v Bleakley, 69 NY2d 490, 495 [1987]), this Court must " 'weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony' " (id., quoting People ex rel. MacCracken vMiller, 291 NY 55, 62 [1943]; seePeople v Khuong Dinh Pham, 31 AD3d 962, 964 [2006]). Viewing the evidence in aneutral light and giving appropriate deference to the jury's "superior opportunity to assess thewitnesses' credibility" (People vGilliam, 36 AD3d 1151, 1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d594, 596 [2006], lv denied 7 NY3d 756 [2006]), we do not find that the verdict wascontrary to the weight of the evidence. The medical evidence was consistent with the victim'stestimony that she was punched in the face and kicked in the leg. Additionally, the respondingpolice officer observed swelling of the victim's face and her indication that she was in pain. Thepolice officer also testified that the victim identified defendant as the person who attacked her.
In light of the evidence which supports the charges, we are not persuaded that minorinconsistencies between the victim's trial testimony and the other evidence (including the victim'sown pretrial statements), together with defendant's assertions that the victim had a motive to lie,demonstrate that the verdict was contrary to the weight of the evidence (see People vGilliam, 36 AD3d at 1152-1153; People v Jegede, 304 AD2d 850, 851 [2003],lvs denied 100 NY2d 539 [2003], 3 NY3d 676 [2004]; People v Maxwell, 260AD2d 653, 654-655 [1999], lv denied 93 NY2d 1004 [1999]).
Defendant's contentions that the indictment was defective and that charging him with bothaggravated criminal contempt and criminal contempt in the first degree was duplicitous andviolated double jeopardy principles were not properly preserved for our review (see People v Miller, 27 AD3d1017, 1018 [2006]; People vStabb, 9 AD3d 738, 739 [2004]). Had they been preserved, we would find them to bewithout merit (see Penal Law former § 215.52; People v Wilmore, 305AD2d 117, 118 [2003], lv denied 100 NY2d 589 [2003]).
Cardona, P.J., Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed.