| People v Brabant |
| 2009 NY Slip Op 02487 [61 AD3d 1014] |
| April 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jacob R.Brabant, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria Esposito-Shea of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered December 14, 2007, upon a verdict convicting defendant of the crime ofassault in the second degree.
At approximately 2:00 a.m. on July 29, 2006, Sam Hires was beaten unconscious outside theKozy Korner Tavern in the City of Ogdensburg, St. Lawrence County. He was transported to anearby hospital, then to a medical center in the City of Syracuse, Onondaga County, where hisinjuries were treated. He remained hospitalized until July 31, 2006.
Defendant, Jared Casey and Jared's sister, Gina Casey, were each indicted on one count ofassault in the second degree. Gina Casey entered a guilty plea to third degree assault, whiledefendant and Jared Casey proceeded to a joint jury trial. At trial, Hires was unable to recall thedetails of the attack, and neither he nor any of the other witnesses was able to identify any of theassailants. However, a sworn statement that Hires gave to a City of Ogdensburg police officer onAugust 3, 2006 was admitted into evidence as a past recollection recorded. In that statement,Hires averred that prior to the beating, while inside the Kozy Korner, he made a negativecomment about Jared Casey's parole status, which led to angry words being exchanged betweenHires and Jared Casey. Gina Casey then approached Hires and punched him in the nose. Hiresthereafter exited the tavern and walked around the corner toward the side entrance, where [*2]defendant and Jared Casey stopped him. According to Hires'statement, defendant punched him in the face knocking him down. Defendant and the Caseysthen repeatedly struck him until he lost consciousness.
Defendant was convicted as charged and sentenced to a prison term of five years with fiveyears of postrelease supervision. He appeals, and we affirm.[FN*]
To the extent that defendant preserved his contention that the evidence is not legallysufficient to support the conviction (see People v Gray, 86 NY2d 10, 20-21 [1995]), weare not persuaded. As relevant here, the crime of assault in the second degree requires proof thatdefendant both intended to cause serious physical injury to another person and in fact causedsuch injury (see Penal Law § 120.05 [1]). In this case, viewing the evidence in thelight most favorable to the People (see People v Acosta, 80 NY2d 665, 672 [1993]), wefind that legally sufficient evidence of a serious injury was supplied by Hires' medical records,which document, among other injuries, a fractured skull with a resulting subdural hematoma, afractured jaw, and a facial laceration requiring 15 sutures (see Penal Law § 10.00[10]; People v Wehrle, 308 AD2d 660 [2003]; People v Romer, 163 AD2d 880[1990], lv denied 76 NY2d 896 [1990]). Furthermore, we find that Hires' August 3, 2006sworn statement that defendant punched him in the face, knocking him to the ground, and thencontinued to punch and kick him about the face and body until he lost consciousness providedlegally sufficient evidence of defendant's intent to cause serious physical injury (People vCruz, 267 AD2d 319, 319-320 [1999], lv denied 94 NY2d 918 [2000]). Defendant'sargument that Hires' statement should not have been admitted as a past recollection recorded wasnot preserved by objection at trial. In any event, admissibility of the statement was "a matter forthe exercise of the court's discretion in determining whether [the People] made a sufficientshowing of the accuracy of the recording and its reliability" (People v Taylor, 80 NY2d1, 9 [1992]). In this case, we are not persuaded that County Court abused its discretion inadmitting the statement into evidence. Additionally, upon our independent review of the recordand giving due deference to the jury's "opportunity to view the witnesses, hear the testimony andobserve demeanor" (People v Bleakley, 69 NY2d 490, 495 [1987]), we find that theverdict was not against the weight of the evidence.
Defendant's further contention that he did not receive the effective assistance of counsel isalso unpersuasive. Counsel made appropriate pretrial motions, conducted thoroughcross-examinations exploring inconsistencies in Hires' various accounts of the attack, presented acogent alibi defense, and made relevant opening and closing statements. Under thecircumstances herein, defendant received meaningful representation.
Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Jared Casey's conviction is alsoaffirmed in a separate decision (People v Casey, 61 AD3d 1011 [2009] [decidedherewith]).