| People v Greene |
| 2010 NY Slip Op 02996 [72 AD3d 1279] |
| April 15, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ian Greene,Also Known as E, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered September 18, 2008, upon a verdict convicting defendant of the crimes of assault in thesecond degree, criminal possession of a weapon in the third degree and tampering with a witnessin the third degree.
Defendant and his codefendant, Shawn Roberts, were at the apartment of Raymond Gagnonwith the victim in January 2008 when they began to question the victim about his role in a druginvestigation being conducted by the police. When the victim denied that he was an informant,he was physically restrained by Roberts, and defendant then placed a red-hot barbecue forkagainst the side of the victim's head causing serious burns to his face, neck and ear. Later, as thevictim was being escorted out of the apartment to Roberts' car, he managed to escape andcontacted the police. At police headquarters, the victim received first aid, but eventually went toa local hospital where he obtained medical treatment for his injuries.
Defendant was subsequently charged in a five-count indictment with robbery in the [*2]second degree (two counts),[FN1]assault in the second degree, tampering with a witness in the third degree and criminalpossession of a weapon in the third degree.[FN2]After a jury trial, defendant was found not guilty of the robbery charges, but was convicted ofthe remaining charges and ultimately sentenced, as a second felony offender, to an aggregateterm of seven years in prison plus five years of postrelease supervision. Defendant now appeals.
Initially, defendant argues that his convictions were not supported by legally sufficientevidence and the verdict is against the weight of the credible evidence because it was neverestablished at trial that the barbecue fork, as used against the victim, constituted a dangerousinstrument. In that regard, for the assault and weapons possession convictions to be legallysufficient and enjoy the support of the credible evidence introduced at trial, the People wererequired to prove that the barbecue fork, as it was used against the victim, constituted adangerous instrument (see Penal Law § 120.05 [2]; § 265.02 [1]; §265.01 [2]). A dangerous instrument is defined as "any instrument, article or substance. . . which, under the circumstances in which it is used, attempted to be used orthreatened to be used, is readily capable of causing death or other serious physical injury" (PenalLaw § 10.00 [13]; see People vBonney, 69 AD3d 1116, 1119 [2010]; People v Griffin, 24 AD3d 972, 973 [2005], lv denied 6NY3d 834 [2006]). The evidence presented, as well as common sense, leaves no doubt that thered-hot barbecue fork as used by defendant was "readily capable of causing death or otherserious physical injury" (Penal Law § 10.00 [13]; see People v Jiminez, 36 AD3d 962, 964 [2007], lv denied8 NY3d 947 [2007]; People vRichard, 30 AD3d 750, 752-753 [2006], lv denied 7 NY3d 869 [2006];People v Griffin, 24 AD3d at 973; People v Holmes, 9 AD3d 689, 691 [2004], lv denied 3NY3d 675 [2004]; People v Amato,1 AD3d 713, 715-716 [2003], lv denied 1 NY3d 594 [2004]).[FN3]
Defendant also challenges his sentence as being harsh and excessive. We disagree.Defendant is a second felony offender who, at the time of this incident, was on probation for aprior illegal drug sale. Moreover, defendant stands convicted of torturing an individual as part ofan attempt to impede a pending criminal investigation. As such, there is simply no justificationfor modifying this sentence (see Peoplev Murphy, 66 AD3d 1234, 1236-1237 [2009]; People v Bruno, 63 AD3d 1297, 1300 [2009], lv denied 13NY3d 858 [2009]; People v Mitchell, 55 AD3d [*3]1048,1052 [2008], lv denied 12 NY3d 856 [2009]; People v Ciarleglio, 299 AD2d571, 572 [2002]).
Spain, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The robbery charges stem froman allegation that defendant and Roberts forcibly stole the victim's clothing.
Footnote 2: Except for the criminalpossession of a weapon in the third degree charge, Roberts was charged in the indictment withthe same crimes as defendant, as well as three counts of criminal sale of a controlled substance inthe third degree, all of which involve controlled buys made from him by the victim. Roberts wastried with defendant and found guilty of assault in the second degree, tampering with a witnessin the third degree and the three counts of criminal sale of a controlled substance in the thirddegree.
Footnote 3: Serious physical injury isdefined as "physical injury which creates a substantial risk of death, or which causes death orserious and protracted disfigurement, protracted impairment of health or protracted loss orimpairment of the function of any bodily organ" (Penal Law § 10.00 [10]).