| People v Hayden |
| 2009 NY Slip Op 01735 [60 AD3d 1155] |
| March 12, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gregory E.Hayden, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered January 2, 2008, upon a verdict convicting defendant of three counts of the crime ofrobbery in the second degree.
Following an incident in which the victim was allegedly beaten and robbed by defendant andfour other men, defendant was charged in an indictment with three counts of robbery in thesecond degree and one count of assault in the third degree. The matter proceeded to a jury trial,at the close of which defendant was acquitted of assault in the third degree and otherwiseconvicted as charged. County Court thereafter sentenced him to an aggregate term of six years inprison, to be followed by five years of postrelease supervision. Defendant appeals, and we nowaffirm.
Defendant argues that his conviction was against the weight of the evidence, asserting thatthe victim's testimony is incredible as a matter of law and that the People failed to establish thatthe victim suffered a physical injury, an element of robbery in the second degree as charged incount two of the indictment (see Penal Law § 160.10 [2] [a]). Inasmuch as thePeople concede that a different verdict would not have been unreasonable, we "must, like thetrier of fact below, 'weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony' " (People vBleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Romero, 7 NY3d 633, 643-644 [2006]). Moreover,weight of the evidence review is not limited to a determination of credibility issues; we "must[also] consider [*2]the elements of the crime, for even if theprosecution's witnesses were credible their testimony must prove the elements of the crimebeyond a reasonable doubt" (People vDanielson, 9 NY3d 342, 349 [2007]).
Here, it is undisputed that defendant was present during the physical altercation involvingthe victim, although defendant informed police that he was merely trying to break up the fight.The victim, in contrast, testified that defendant participated in the altercation and, indeed,pointed a silver pistol at the victim's face and struggled with him over the pistol when he grabbeddefendant's hand. The victim further gave detailed testimony describing how codefendantAndraus Murphy and the other men present repeatedly hit him in the head and face, dragged himdown the stairs, kicked him, and stomped on him until he defecated, then pulled his sweatshirtover his head, ripped open his pants pocket, took his belongings—including about $300 incash—and left him lying at the bottom of a stairwell. The victim blacked out and, after theattack, went to the house of his girlfriend, who called the police. Officers responding to the 911call stated that they observed the victim lying on the floor in a fetal position, moaning andholding his rib section, with blood coming from his nose. The victim was then taken to thehospital where X rays revealed no broken bones, but the victim nonetheless sustained abrasions,bruised ribs and a bruised jaw, which left him feeling like he "got ran over by a truck" and madeit difficult for him to breathe, move and walk for a few days after the incident. The victim furtherstated that doctors at the hospital tried to give him prescription painkillers, but he refused themedication because painkillers make him sick. Finally, we note that police detectives whoexecuted a search warrant at defendant's apartment found a fitted hat that was the same size andotherwise identical to that reported stolen by the victim.
Viewing the evidence in a neutral light, according deference to the jury's "opportunity toview the witnesses, hear the testimony and observe demeanor" (People v Bleakley, 69NY2d at 495), and considering the elements of the crimes (see Penal Law §160.10 [1], [2]), we conclude that the verdict is not against the weight of the evidence (see People v Winchell, 46 AD3d1096, 1097 [2007], lv denied 10 NY3d 818 [2008]; People v Rivera, 42 AD3d 587,589 [2007], lv denied 9 NY3d 880 [2007]; People v Mendez, 34 AD3d 697, 699 [2006]). Although thevictim's testimony may have been inconsistent with his prior statements about the incident, thoseinconsistencies do not, in our view, render the testimony incredible as a matter of law (see People v Voymas, 39 AD3d1182, 1183 [2007], lv denied 9 NY3d 852 [2007]; People v Black, 304AD2d 905, 907-908 [2003], lv denied 100 NY2d 578 [2003]; see also People v Brown, 46 AD3d949, 951 [2007], lv denied 10 NY3d 808 [2008]). Finally, given the officers'description of defendant when they first encountered him and the victim's testimony about hiscourse of treatment at the hospital and the pain resulting from the attack, we cannot concludethat the jury's finding that the victim suffered a physical injury was against the weight of theevidence (see Penal Law § 10.00 [9]; People v Chiddick, 8 NY3d 445, 447-448 [2007]; People vGuidice, 83 NY2d 630, 636 [1994]; People v Black, 304 AD2d at 908).
Defendant's remaining argument has been considered and found to be lacking in merit.
Peters, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.