| People v Scharpf |
| 2009 NY Slip Op 01547 [60 AD3d 1101] |
| March 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Craig W.Scharpf, Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Rose, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.), renderedJune 19, 2007, upon a verdict convicting defendant of the crimes of assault in the first degree,criminal possession of a weapon in the third degree, intimidating a victim or witness in the thirddegree and aggravated harassment in the second degree (two counts).
After allegedly striking the victim with a baseball bat, causing serious head injuries and latermaking threats against a witness to the incident, defendant was charged with assault in the firstdegree, criminal possession of a weapon in the third degree, aggravated harassment in the seconddegree (two counts) and intimidating a witness in the third degree. Defendant did not testify athis jury trial, but his counsel argued that he had acted in self-defense as shown by certainstatements he had made to police at the scene and in a recording of the witness's 911 call. Thejury convicted defendant on all counts and he was sentenced as a second felony offender toconcurrent and consecutive prison terms, the longest of which is 15 years. County Court alsoordered restitution in the amount of $29,655.62 for the victim's medical expenses. Defendantnow appeals.
We are not persuaded by defendant's contention that the People failed to disprove hisjustification defense to the assault charge. Justification for the use of deadly physical force couldhave been established here if defendant reasonably believed that such force was necessary to[*2]prevent a burglary of his dwelling or to protect himself fromthe use or imminent use of deadly physical force by the victim (see Penal Law §35.15 [1]; § 35.20 [3]). Although defendant's counsel argued that defendant hadreasonably believed that the victim was attempting to break into his house and was about toattack him, defendant's statements at the scene showed that defendant had denied touching thevictim and claimed instead that the victim had fallen and struck his head on a pipe located neardefendant's front door. The police found no evidence corroborating defendant's later claim thatthe victim had broken a window in his door, which would have suggested an attempted burglary.Nor was the victim's blood found near the pipe. Instead, it was found some distance away on thedriveway where a witness testified that defendant had ambushed the victim and struck him twicein the head with a baseball bat before the victim had reached the house or made any contact withdefendant. Thus, the defense of justification was inconsistent with defendant's statements andunsupported by the physical evidence.
In any event, the People presented other evidence through the testimony of the witness andthe investigating police officers that the victim had been unarmed, that he had not reached thedoorway or broken into defendant's home, and that defendant struck the victim with the batbefore the victim made any contact with defendant. Because this evidence contradicteddefendant's justification defense, and it was for the jury to assess the credibility of the People'switnesses, we conclude that the jury's rejection of that defense is supported by legally sufficientevidence and is not against the weight of the evidence (see People v Gilliam, 300 AD2d701, 702 [2002], lv denied 99 NY2d 628 [2003]; People v Reeder, 209 AD2d551, 551-552 [1994], lv denied 85 NY2d 913 [1995]; People v Troche, 147AD2d 513, 514 [1989], lv denied 73 NY2d 1022 [1989]).
Nor did County Court err by instructing the jury on defendant's consciousness of guilt. Thetestimony at trial established that defendant tried to avoid police detection by staying away fromhis home after the incident and deceiving the police into believing that he had left the area. Hewas finally arrested when he was found hiding in his sister's garage. This evidence justified theconsciousness of guilt charge given here (see People v Young, 51 AD3d 1055, 1056-1057 [2008], lvdenied 11 NY3d 796 [2008]; People v Carney, 23 AD3d 772, 774-775 [2005]).
We also are unpersuaded by defendant's contention that, in considering his CPL 330.30motion, County Court erred in rejecting his argument that the distance between Essex Countyand the place of his incarceration had deprived him of the effective assistance of counsel beforetrial. Due to overcrowding at the local jail, defendant was held in a neighboring countyapproximately 75 miles from his counsel's office. While this distance was an inconvenience, therecord reflects that defendant had numerous telephone conversations and other contact with hiscounsel, and County Court facilitated this contact by having defendant retained in Essex Countyat certain stages of the proceedings. In these circumstances, the inconvenience of a two-hourdrive for counsel to visit defendant in jail was not shown to constitute a deprivation of his rightto counsel (see United States v Lucas, 873 F2d 1279, 1280-1281 [1989]; UnitedStates v Echeverri, 1992 WL 81876, *2, 1992 US Dist LEXIS 22488, *5-6 [ED NY, Mar.31, 1992, Hurley, J.]).
Finally, we have considered defendant's remaining contentions, and find them to be withoutmerit.
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.