| People v Bonney |
| 2010 NY Slip Op 00407 [69 AD3d 1116] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DonnellBonney, Appellant. |
—[*1] P. David Soares, District Attorney, Albany, for respondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered July 31, 2008, upon a verdict convicting defendant of the crimes of attempted murder inthe second degree, burglary in the first degree, assault in the second degree, unlawfulimprisonment in the second degree and aggravated harassment in the second degree.
Defendant and the victim have been involved in a long-term relationship that has beencharacterized by numerous assaults and other acts of violence. On September 21, 2007, thevictim, upon returning home after spending an evening with friends, received a telephone callfrom defendant in which he told her that she "better watch [her]self." Shortly after that phonecall, defendant, apparently enraged at the prospect that another adult male might be in the house,forced his way into the victim's home, grabbed her by the hair, put a knife to her throat andrepeatedly hit her head against the floor and kitchen countertop. He dragged the victimthroughout the premises, apparently in search of her male companion, and choked her until shebecame momentarily unconscious. At one point during the encounter, defendant grabbed aphotograph of one of the victim's children and told her that she "was never going to see [her]kids again." The attack continued unabated until the parties' 10-year-old son came into the homeand saw defendant on top of the victim strangling her. Defendant, upon seeing his son, spit onthe victim and fled. After 911 was called, the victim was taken to the hospital where bruises andabrasions were noted about her head and face and she was found to have sustained a fracture toher thyroid cartilage. She also reported having difficulty with her vision as well as her hearingand claimed to have sustained some loss of memory.
Defendant was subsequently charged by indictment with, among other things, attemptedmurder in the second degree, burglary in the first degree, assault in the second degree, unlawfulimprisonment in the second degree and aggravated harassment in the second degree.[FN*]At trial he was convicted of these five charges and sentenced, as a second felony offender, to anaggregate prison term of 24 years, plus five years of postrelease supervision. Defendant nowappeals.
Initially, defendant contends that his conviction for attempted murder is not supported by theweight of the credible evidence because it was never established at trial that, at any time duringthe encounter, he intended to kill the victim as opposed to simply intending to assault her. Whileconceding that he forced his way into the victim's home, defendant argues that his actions thatevening did not amount to conduct that came "dangerously near" to causing the victim's deathand did not support the jury's verdict convicting him of attempted murder (People vAcosta, 80 NY2d 665, 670 [1993]; see Penal Law §§ 110.00, 125.25[1]; People v Naradzay, 11 NY3d460, 466 [2008]). Specifically, defendant claims that the entire encounter was prompted byhis concern for the victim's safety and that he only became angry and agitated once inside thepremises because he believed that the victim had been entertaining a male visitor. He admitsgrabbing the victim by her hair, assaulting her and placing his hands about her neck, but deniesever harboring an intent to kill her. He also argues that the victim's prompt discharge from thehospital on the evening of the attack is evidence that she was not seriously injured and that, if hetruly intended to kill her, her injuries would have been more serious.
Initially, in determining defendant's state of mind at the time of the attack, his actions mustbe viewed in connection with the surrounding circumstances, specifically in the context of theparties' long and tumultuous relationship (see People v Timmons, 54 AD3d 883, 885 [2008], lvdenied 12 NY3d 822 [2009]; People v Booker, 53 AD3d 697, 703 [2008], lv denied 11NY3d 853 [2008]; People v Pagan,12 AD3d 1143, 1144 [2004], lv denied 4 NY3d 766 [2005]). In that regard,evidence was presented at trial that defendant had previously written a letter to the victim whilehe was incarcerated on another charge in which he warned her that "by the time I get out of here,you better hope that you have sold that house and better hope that I do not find out where youlive." In the week immediately prior to this incident, defendant repeatedly telephoned the victim,called her vulgar names and warned her that she had "better watch every move [she made]" andthreatened that he would kill her. In addition, coworkers of the victim testified to hearingdefendant threaten her and state that he would kill her.
Moreover, the victim testified that, during the attack, defendant used such force when hegrabbed her about the neck that she became numb, saw flashes, momentarily lost consciousnessand, at some point, sustained a fracture to her thyroid cartilage. Expert testimony introduced attrial established that such a degree of force, when applied to a person's neck, may interrupt theblood supply to the brain and, if applied for a continuous period of "about ten seconds," cancause unconsciousness and, if persistent force is applied, can result in death. Since defendantonly ended his assault of the victim when the parties' 10-year-old son happened on the scene and,according due deference to the jury's resolution of credibility issues that arose during the courseof this trial (see People v Romero, 7NY3d 633, 645 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), ampleevidence was presented for the jury to conclude that defendant, during the encounter, formed therequisite intent, his conviction for attempted murder was not against the weight of the evidence(see People v Baker, 27 AD3d1006, 1009 [2006], lv denied 7 NY3d 785 [2006]; People v Rouse, 4 AD3d 553, 555[2004], lv denied 2 NY3d 805 [2004]; People v Delosh, 2 AD3d 1047, 1049 [2003], lv denied 1NY3d 626 [2004]).
We are of the same view as to the evidence offered in support of defendant's conviction forassault in the second degree. Assault in the second degree is committed when "[w]ith intent tocause physical injury to another person, [a defendant] causes such injury . . . bymeans of a . . . dangerous instrument" (Penal Law § 120.05 [2]). Here,defendant was charged with using the kitchen floor and countertop as a dangerous instrument byrepeatedly forcing the victim's head against each surface intending to cause her physical injury.A dangerous instrument is defined as "any instrument . . . which, under thecircumstances in which it is used, . . . is readily capable of causing death or otherserious physical injury" (Penal Law § 10.00 [13]). In support of his contention that neitherthe floor nor the countertop were used as dangerous instruments, defendant presented expertmedical testimony to the effect that the victim's injuries did not conform to what wouldotherwise have been expected if either surface had been used as described by the victim duringthe attack. However, this expert did not deny, under the facts presented, that the victim's headcould have been forced against the countertop and floor during the encounter and that suchcontact could cause her physical injury. Given defendant's admissions regarding his assault ofthe victim, the victim's testimony, and the injuries that were later noted on her head and face, wecannot conclude that the jury's verdict convicting defendant of assault in the second degree wasagainst the weight of the credible evidence (see People v Medor, 39 AD3d 362, 362-363 [2007], lvdenied 9 NY3d 867 [2007]; see also People v Roblee, 70 AD3d 225,227-228 [2009]; People v Zabala, 290 AD2d 578, 580[2002], lv denied 97 NY2d 735 [2002]).
As for his conviction of burglary in the first degree, defendant claims that he resided in thehouse at the time of the incident and, therefore, had every right to enter it—even forcefully(see Penal Law § 140.30 [2]). He also argues that he only forced his way into thepremises because he did not have a key and, at the time, feared for the victim's safety. As such,defendant contends that he did not enter the premises with a criminal intent and, therefore, couldnot have committed a burglary. While the victim acknowledges that defendant previously livedwith her on the premises, they had, according to her, ended their relationship prior to the day ofthe attack and that, on that date, defendant no longer had a legal right to enter the premiseswithout her permission. She testified that the locks had been changed and, for that reason,defendant no longer had a key to the premises. Defendant confirmed that on the day of theincident he was involved in another relationship with a woman who was providing him withfinancial support. This evidence and, in particular, defendant's forcible entry into the premises,his assault of the victim and his flight from the scene, all paint a compelling picture ofdefendant's state of mind at that moment in time and established that his conviction for burglaryin the first degree was supported by the weight of the credible evidence (see People v Johnson, 20 AD3d808, 811 [2005], lv denied 5 NY3d 853 [2005]; People v Richards, 290AD2d 584, 586 [2002], lv denied 98 NY2d 654 [2002]).
Finally, defendant claims that if the jury accepted his explanation as to why he feltcompelled to force his way into the victim's home, it could have concluded that he did not enterthe premises with the intent to commit a crime and, therefore, was, at best, guilty of a criminaltrespass. He argues that County Court committed reversible error by not providing the jury withthe option of considering criminal trespass as a lesser included offense to the burglary chargeand that his conviction for burglary should be reversed on this basis (see CPL 300.50 [1],[2]; People v Miles, 55 AD3d955, 955-956 [2008], lv denied 11 NY3d 928 [2009]; People v Richard, 30 AD3d 750,753 [2006], lv denied 7 NY3d 869 [2006]). In essence, defendant contends that the jurycould have concluded that he was responding to an emergency and that his entry into the victim'shome was, under the circumstances, justified and not unlawful (see Penal Law §35.05 [2]; People v Figueroa, 154 AD2d 389, 390 [1989], lv denied 75 NY2d770 [1989]; see also People vHarris, 50 AD3d 1608, 1608 [2008], lv denied 10 NY3d 959 [2008]). However,such an explanation, if accepted, would not have supported a finding that defendant committedany crime by entering the premises and County Court, for that reason, was correct in refusing tosubmit criminal trespass to the jury for its consideration as a lesser included offense.
Spain, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: The aggravated harassmentcharge stemmed from an incident that occurred a week earlier on September 14, 2007 whendefendant was alleged to have repeatedly telephoned the victim and left threatening messages onher answering machine.