| People v Nash |
| 2009 NY Slip Op 05693 [64 AD3d 878] |
| July 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lester D.Nash, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.),rendered May 23, 2007, upon a verdict convicting defendant of the crime of assault in the seconddegree.
While incarcerated in the Broome County Jail, defendant and the victim had a disagreementconcerning an exchange of bread and juice. Feeling disrespected by the victim's refusal of hisoffer of bread, defendant allegedly punched the victim in the face, causing profuse bleeding,bruising, swelling and multiple fractures of the bones of the victim's face in the area of his righteye. As a result, defendant was charged with one count of assault in the second degree.Defendant was ultimately convicted by a jury as charged and was sentenced as a second violentfelony offender to a term of imprisonment of seven years to be followed by five years ofpostrelease supervision. He now appeals.
Initially, we discern no error in County Court's denial of defendant's speedy trial motion. Afelony complaint was issued on December 5, 2005, charging defendant with one count of assaultin the second degree. Defendant was subsequently indicted on the same charge on December 20,2005; he was arraigned on the indictment on December 23, 2005 and the People declared theirreadiness for trial on that date. Defendant was later released on bail and subsequently failed toappear as scheduled before County Court in April 2006, prompting the [*2]issuance of a bench warrant. Defendant was arrested in KingsCounty on unrelated charges in August 2006. Following some difficulties on the part of thePeople in procuring defendant's appearance in County Court, he was returned to Broome Countyin October 2006. At a November 2006 appearance before County Court, a March 5, 2007 trialdate was set and defendant was then returned to Kings County. The People again encounteredproblems in arranging to produce defendant for the trial, but defendant's presence in BroomeCounty was eventually accomplished on March 12, 2007 and a new May 2007 trial date was setby the court a few days later. Defendant filed an omnibus motion in March 2007 and, in April2007, defendant moved to dismiss the indictment pursuant to CPL 30.30. County Court denieddefendant's CPL 30.30 motion on May 10, 2007 and his trial commenced shortly thereafter.
Having charged defendant with a felony, the People were required to be ready for trial withinsix months of the filing of the first accusatory instrument, here the felony complaint (seeCPL 30.30 [1] [a]; People v Cortes, 80 NY2d 201, 208 [1992]; People v Ramos, 48 AD3d 984,986 [2008], lv denied 10 NY3d 938 [2008]). The People declared their readiness for trialwithin the six-month period. Therefore, we must determine whether any postreadiness delays arechargeable to the People (see People vRouse, 4 AD3d 553, 556 [2004], lv denied 2 NY3d 805 [2004]; People vSimmons, 252 AD2d 825, 826 [1998]; see generally People v Anderson, 66 NY2d529 [1985]). To that end, in calculating the time elapsed for purposes of CPL 30.30, CountyCourt properly determined that the period from November 6, 2006 (when the March 5, 2007 trialdate was set) to February 2, 2007 (when the People failed to comply with County Court's orderto effect defendant's return from Kings County in anticipation of trial) was not chargeable to thePeople inasmuch as a trial date had been set and they remained ready for trial. Therefore, thisdelay was not attributable to their inaction and did not implicate their ability to proceed to trial(see People v Rouse, 4 AD3d at 556). Likewise, the period from the People's declarationof readiness on December 23, 2005 through defendant's arrest in Kings County on August 6,2006 following his abscondence (see CPL 30.30 [4] [c] [ii]), and the period attributableto defendant's motion practice from March 21, 2007 through May 10, 2007 (see CPL30.30 [4] [a]; People v Dunton, 30AD3d 828, 828-829 [2006], lv denied 7 NY3d 847 [2006]) were not chargeable tothe People. Exclusion of these time periods brings the time chargeable to the People well withinthe six-month limit. Therefore, defendant's remaining arguments regarding the People's failure toproduce defendant for the March 5, 2007 trial date are rendered academic. Additionally, uponconsideration of the factors enunciated in People v Taranovich (37 NY2d 442, 445[1975]), we find no constitutional speedy trial violation (see People v Pitt, 43 AD3d 1248, 1249 [2007], lv denied 9NY3d 1008 [2007]).
Defendant's claim that the evidence of the victim's injuries was legally insufficient todemonstrate that he had sustained a physical injury within the meaning of the Penal Law is alsounavailing. " 'Physical injury' means impairment of physical condition or substantial pain" (PenalLaw § 10.00 [9]; see People vChiddick, 8 NY3d 445, 447 [2007]; People v Foster, 52 AD3d 957, 959 [2008], lv denied 11NY3d 788 [2008]). Here, the radiologist who read the victim's CT scans testified that the victimhad sustained multiple "severe" fractures. In addition, the victim testified that he had to be takento the hospital, had difficulty opening his right eye for days after the incident, spent 30 days inthe medical unit of the jail, and was prescribed medication to alleviate his pain. Viewing theevidence in a light most favorable to the People (see People v Foster, 52 AD3d at 959),we conclude that it was legally sufficient for the jury to find that the victim sustained a physicalinjury (see People v Chiddick, 8 NY3d at 447; People v Foster, 52 AD3d at959-960; People v Porter, 305 AD2d 933, 933-934 [2003], lv denied 100 NY2d586 [2003]).[*3]
Defendant next asserts that the jury's conclusion that heintended to cause physical injury (see Penal Law § 120.05 [7]) is contrary to theweight of the evidence. "Intent may be inferred from conduct as well as the surroundingcircumstances" (People v Steinberg, 79 NY2d 673, 682 [1992] [citations omitted]; see People v Zindle, 48 AD3d971, 973 [2008], lv denied 10 NY3d 846 [2008]; People v Terk, 24 AD3d 1038, 1039 [2005]) and, contrary todefendant's contention, need not exist for any length of time prior to the moment of theprohibited act (see CJI2d[NY] Culpable Mental States—Intent).
Here, evidence established that the victim rebuffed defendant's offer to trade a piece ofdefendant's bread at the current meal for the victim's juice at breakfast the next morning. Thevictim threw the bread back on defendant's tray, prompting defendant to walk over to the victimand verbally engage the victim. Then, in response to another allegedly insulting comment by thevictim, defendant punched the victim in the face with enough force to knock him out of his seatand onto the floor. There was no testimony that the victim's statements were threatening in anyway and, in any event, defendant was free to walk away. Viewing the incident in its entirety, itcan be inferred from the circumstances that defendant intended to cause physical injury to thevictim, notwithstanding defendant's assertions to the contrary. In sum, upon our review of theevidence in a neutral light—including both defendant's and the victim's accounts of theincident along with that of the correction officer who was present at the time, and the evidenceregarding the extent and seriousness of the victim's injuries—we find that defendant'sconviction was in accord with the weight of the evidence (see People v Zindle, 48 AD3dat 973; People v Terk, 24 AD3d at 1039-1040).
Finally, defendant contends that County Court erred in failing to dismiss the indictment dueto a defect in the grand jury process. His claim is premised upon an assertion that the same grandjury that handed up the present indictment was also presented with evidence against defendantregarding a separate and unrelated criminal transaction.
Dismissal of an indictment is appropriate where the grand jury proceedings are defective "inthat they fail 'to conform to the requirements of [CPL article 190] to such degree that theintegrity thereof is impaired and prejudice to the defendant may result' " (People v DiFalco, 44 NY2d 482, 485 [1978], quoting CPL 210.35 [5]; see CPL 210.20 [1] [c];People v Williams, 73 NY2d 84, 90 [1989]). Nothing within CPL article 190 explicitlyprohibits the independent presentment to one grand jury of two unrelated matters seeking twoseparate indictments regarding the same defendant (see People v Nieves, 279 AD2d 388,388 [2001], lv denied 96 NY2d 804 [2001]; see generally People v Adessa, 89NY2d 677 [1997]). In our view, the circumstance presented here is no more problematic than thepermitted procedure wherein a grand jury considers, for purposes of handing up a singleindictment, multiple offenses arising from different criminal transactions that are joinablebecause they are "the same or similar in law" (CPL 200.20 [2] [c]; see People v Simon,187 AD2d 740, 740 [1992], lv denied 81 NY2d 893 [1993]; Matter of Gold vBooth, 79 AD2d 1013, 1013 [1981]).[FN1]Accordingly, the mere presentation to a single grand jury of evidence regarding two differentalleged criminal [*4]transactions—even though theoffenses arising therefrom would not be joinable—neither "fails to conform to therequirements of [CPL article 190]" nor does it, without more, present an impairment of theintegrity of the grand jury which may result in prejudice to the defendant (CPL 210.35 [5];see People v Nieves, 279 AD2d at 388).
However, our inquiry does not end there. It is also necessary to determine whether therewere any improprieties in the manner in which the two alleged criminal transactions werepresented to the grand jury which may have impaired the grand jury's integrity and prejudiceddefendant (see generally CPL 190.25 [6]; People v Huston, 88 NY2d 400 [1996];People v Caracciola, 78 NY2d 1021, 1022 [1991]; People v Darby, 75 NY2d449, 454 [1990]; People v Jones, 239 AD2d 234, 235 [1997]). Thus, a review of thegrand jury minutes is necessary to determine whether dismissal is warranted.[FN2]However, it does not appear that such a review was undertaken by County Court here and therecord before us does not include a copy of either the grand jury minutes or a transcript of anyhearing held to determine the merits of defendant's argument. Thus, remittal is necessary.
Mercure, J.P., Peters, Malone Jr. and Garry, JJ., concur. Ordered that the decision iswithheld, and matter remitted to the County Court of Broome County for further proceedings notinconsistent with this Court's decision.
Footnote 1: Arguably, presentation ofunrelated but substantially similar alleged crimes to a grand jury is more prejudicial to adefendant than the presentation of unrelated and different alleged crimes.
Footnote 2: Specifically, an assessmentshould be made as to whether the manner of presentment to the grand jury created an undue riskthat evidence of one criminal transaction was improperly considered in the grand jury'sdeliberation of the other.