| People v Carter |
| 2010 NY Slip Op 04665 [74 AD3d 1375] |
| June 3, 2010 |
| Appellate Division, Third Department |
3
| The People of the State of New York, Respondent, v Jerry Carter,Also Known as Big and as Big Man, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered October 8, 2008, upon a verdict convicting defendant of the crimes of robbery in thefirst degree (two counts), robbery in the second degree, assault in the first degree (two counts),assault in the second degree, criminal possession of a controlled substance in the fifth degree andcriminal possession of a weapon in the third degree.
Defendant's convictions stem from two separate incidents, the first occurring on November26, 2007, when the victim went to the basement of 195 Clinton Avenue, in the City of Albany, topurchase drugs from defendant. An argument ensued concerning the victim's bracelet,culminating in a physical altercation during which defendant bit off a portion of the victim's ear.As a result of a separate investigation, police successfully conducted a controlled buy three dayslater at defendant's residence. When defendant was arrested, a bag of cocaine was found secretedon his body and a search of his residence resulted in the discovery of a handgun. Defendant wasthen charged in an 11-count indictment; he later moved to sever those counts stemming from theNovember 26 incident from the remaining counts. County Court denied that motion. Following ajury trial, defendant was convicted of two counts of robbery in the first degree, robbery in thesecond degree, two counts of assault in the first degree, assault in the second degree, criminalpossession of a controlled substance in the fifth degree and criminal possession of a weapon in[*2]the third degree. He was sentenced to an aggregate prisonterm of 28½ to 32 years with five years of postrelease supervision. Defendant now appeals.
Initially, we reject defendant's challenges to the sufficiency and weight of the evidenceadduced at trial. Defendant asserts that the evidence was legally insufficient to support hisrobbery convictions in that there was inadequate evidence that he "forcibly [stole] property"within the meaning of Penal Law §§ 160.10 and 160.15, claiming that the evidenceat trial demonstrated that the victim willingly gave the bracelet to him in exchange for moneyand, therefore, the bracelet was his property when the fight began. Defendant did not make thisspecific argument in his motion to dismiss at the close of the People's case and, therefore, it isnot preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). We have,nevertheless, necessarily considered the sufficiency of evidence as to each element of thesecrimes in the context of our weight of the evidence review (see People v Danielson, 9 NY3d 342, 349-350 [2007]; People v Morrison, 71 AD3d1228, 1229 [2010]), and find the convictions to be sound. In contrast to defendant's versionof events, the victim testified that after he refused to sell defendant his bracelet, defendant pulledout what appeared to be a handgun, pointed it at him and demanded the bracelet. The victim thentossed his bracelet at defendant and charged at him, attempting to wrestle the handgun away.According deference to the jury's credibility determinations (see People v Bailey, 295AD2d 632, 634 [2002], lv denied 98 NY2d 766 [2002]), we find "no basis upon which todetermine that the jury failed to give the evidence the weight it should be accorded" (People v Johnson, 38 AD3d 1012,1014 [2007]; see People vHutcherson, 25 AD3d 912, 914 [2006], lv denied 6 NY3d 849 [2006]). Nor dowe find error in the jury's rejection of defendant's affirmative defense that the handgun was not aloaded, operable weapon (see Penal Law § 160.15 [4]), in that defendant failed tooffer any evidence at trial to support that defense (see People v Morales, 36 AD3d 957, 959 [2007], lv denied8 NY3d 988 [2007]).
Moving to defendant's assault convictions, we reject defendant's claim that there wasinadequate proof of his intent to seriously harm the victim (see Penal Law §120.05 [1]; § 120.10 [2]). " 'Intent [to cause serious physical injury (or serious andpermanent disfigurement)] may be inferred from conduct as well as the surroundingcircumstances' " (People vHartman, 64 AD3d 1002, 1003 [2009], lv denied 13 NY3d 860 [2009], quotingPeople v Steinberg, 79 NY2d 673, 682 [1992]). Here, the victim's testimony that duringthe altercation defendant beat him with the gun and bit off a large piece of his ear, defendant'soral statement to police that he "did what [he] need[ed] to" and "bit his f. . .ing earoff" and the medical evidence regarding the extensive damage to the victim's ear resulting inpermanent disfigurement support his assault conviction (see People v Stewart, 68 AD3d 1438, 1439-1440 [2009], lvdenied 14 NY3d 773 [2010]; People v Hartman, 64 AD3d at 1003; People v Portee, 56 AD3d 947,948-950 [2008], lv denied 12 NY3d 820 [2009]).
Defendant's conviction for criminal possession of a weapon in the third degree also issupported by the record evidence (see Penal Law § 265.01 [1]; § 265.02[1]). "Where, as here, the People rely on [the theory of] constructive possession . . .it is the People's burden to establish that defendant had dominion and control over the[contraband or the] area where the contraband was found" (People v Edwards, 39 AD3d 1078, 1079 [2007]; see PenalLaw § 10.00 [8]; People v Manini, 79 NY2d 561, 573-574 [1992]). The recordshows that defendant lived in the first floor apartment of 97 Bradford Street, defendant soldcrack cocaine from that apartment and the victim's bracelet and letters addressed to defendantwere found in the apartment. Although the handgun was actually recovered underneath the backporch, ammunition for the handgun was [*3]found inside theapartment. This evidence provided the jury with a valid line of reasoning from which it couldconclude that defendant exercised dominion and control over the area in which the gun wasfound and such finding was not against the weight of the evidence (see People v Young, 48 AD3d901, 902-903 [2008]; People v Edwards, 39 AD3d at 1079; People v Elhadi,304 AD2d 982, 984 [2003], lv denied 100 NY2d 580 [2003]).
Next, we hold that County Court properly denied defendant's motion to sever thedrug-related charges that occurred on November 29, 2007 from the robbery and assault chargesthat occurred three days earlier. Significantly, the People may join multiple offenses in anindictment, " 'even though based on separate and distinct criminal transactions, . . .if they are of such a nature that proof of either offense would be material and admissible asevidence-in-chief upon the trial of the other' " (People v Rodriguez, 68 AD3d 1351, 1353 [2009], quotingPeople v Bongarzone, 69 NY2d 892, 895 [1987]; see CPL 200.20 [2] [b]). Whilein custody, defendant stated, "I ain't no robber, I'm a drug dealer, I don't do stick up shit. I just dothe narcotics thing. I mean if I had a loaded gun, why would I bite his ear off?" This statement isadmissible and material to establish both defendant's identity relating to the assault and robberycharges and his intent to sell and possess narcotics. Likewise, the victim's testimony thatdefendant offered to trade drugs for his bracelet was material and admissible to prove defendant'sintent to sell drugs. Hence, proof relating to defendant's robbery and assault charge was materialand admissible to establish defendant's possession and intent to sell narcotics and vice versa;thus, the severance motion was properly denied (see CPL 200.20 [2] [b]; People v Cherry, 46 AD3d 1234,1236 [2007], lv denied 10 NY3d 839 [2008]; People v Torra, 309 AD2d 1074,1075 [2003], lv denied 1 NY3d 581 [2003]).
We also find no error in County Court's refusal to give a justification charge to the jury(see Penal Law § 35.15 [1] [b]). Even crediting defendant's version of events, theevidence is insufficient to support a finding that defendant was not the initial aggressor and, thus,the justification charge was not warranted (see People v Reynoso, 73 NY2d 816, 818[1988]; People v Ham, 67 AD3d1038, 1039 [2009]).
Finally, we are persuaded that defendant's sentence warrants modification. Here, defendantwas sentenced, as a second felony offender, to an aggregate prison term of 28½ to 32 years.For all crimes except criminal possession of a controlled substance in the fifth degree, CountyCourt imposed the maximum sentences, citing the violence inherent in biting a piece of aperson's ear off and defendant's complete disregard of the law, as evidenced by his drug dealingand possession of a weapon. Although we do not disagree with the court's characterization, wenevertheless find that the maximum sentence imposed on each of the first degree assault and firstdegree robbery convictions—25 years—is excessive given that defendant was 20years old when this incident occurred, had never been incarcerated and does not have anextensive criminal history (see People vKhuong Dinh Pham, 31 AD3d 962, 967 [2006]; People v Wilt, 18 AD3d 971, 973 [2005], lv denied 5NY3d 771 [2005]). Considering all of the particular circumstances of this case, including the factthat defendant was offered a 10-year prison term as part of a plea agreement (see People vKhuong Dinh Pham, 31 AD3d at 967), we deem it appropriate to reduce the sentencesimposed on those four counts to 15-year determinate sentences, with five years of postreleasesupervision (see People v Garner,56 AD3d 951, 952-953 [2008], lv denied 12 NY3d 783 [2009]; People v Collazo, 45 AD3d 899,901-902 [2007], lv denied 9 NY3d 1032 [2008]). Further, we deem defendant's 3½to 7 years consecutive prison sentence for his conviction of criminal possession of a weapon inthe third degree to be appropriate.[*4]
We have considered defendant's remaining contentions,including his claim that he was deprived of the effective assistance of counsel, and find them tobe lacking in any merit.
Cardona, P.J., Mercure, Kavanagh and Garry, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reducing the sentences imposedunder counts 1, 2, 5 and 6 of the indictment to 15 years for each conviction, followed by fiveyears of postrelease supervision, and, as so modified, affirmed.