| People v Thompson |
| 2010 NY Slip Op 09024 [79 AD3d 1269] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Celene R.Thompson, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Spain, J.P. Appeal from a judgment of the County Court of Broome County (Sherman, J.), enteredApril 13, 2009, upon a verdict convicting defendant of the crime of assault in the second degree.
In the early morning hours of July 16, 2007, defendant and his former girlfriend (hereinafter thevictim) arrived at a hotel room in the Town of Union, Broome County, and the victim got into bed whiledefendant spoke on his cell phone in the bathroom. Shortly after defendant exited the bathroom, amasked intruder entered the room and slashed the victim multiple times on her face, head and body,threatened to kill her and then fled. According to the victim, defendant was not harmed or threatenedduring the attack and did not intervene. She called 911 around 6:10 a.m. while defendant drove her tothe hospital, where she was treated, requiring over 40 stitches for her injuries. Although his face wasconcealed, the victim identified the assailant—based upon his build, gait and voice—ascodefendant Cedric Dozier, who she had known for eight years and with whom she recently had adispute over money. When cell phone records connected defendant and Dozier, they were jointlyindicted as accomplices for assault in the first degree and second degree. After a jury trial, defendantwas convicted of assault in the second degree[FN*]and sentenced to five years in prison and five years of postrelease supervision. Defendant appeals, andwe affirm.[*2]
Initially, defendant challenges the weight of the evidence linkinghim as an accomplice to Dozier and establishing his shared intent to cause serious injury to the victim.Upon review of the credible evidence, while a different verdict would not have been unreasonable, ourreview of the probative value of the conflicting testimony and of the relative strengths of the conflictinginferences that may be drawn from the testimony persuades us that the jury's verdict is supported by theweight of credible evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Romero, 7 NY3d633, 643-644 [2006]).
The victim testified that on July 14, 2007, two days before the attack, she met up with Dozier at alocal bar around 2:00 a.m. and later called him via a cell phone number that he gave to her and met himat a hotel, where they stayed until she left around 8:00 a.m. Within hours, Dozier and a friendconfronted the victim at home, accusing her of stealing $600 from Dozier at the hotel. Dozier threatenedher, police were called and Dozier refused to cooperate, telling police he would "handle the problem inhis own way." The responding police officer described him as a black male, six feet, two inches to sixfeet, four inches and 260-270 pounds, and identified him at trial. In the early morning of July 16, 2007,defendant repeatedly called the victim's house and cell phone number asking her to come with him to ahotel because he had unspecified business to take care of the next morning; during the final call,defendant indicated that he was outside of her house and she agreed to go with him, arriving at the hotelaround 5:00 a.m. The victim laid down under the covers to sleep, while defendant went into thebathroom for about 15 minutes, during which time she could hear him talking on his cell phone butcould not hear with whom he was speaking, although at one point she heard a woman's voice.Defendant then came out of the bathroom and sat on the adjacent bed talking with her, at which time amasked man she recognized to be Dozier entered and attacked only her and threatened to kill her,never speaking to or harming defendant, who moved back on the bed and remained silent. Theassailant took no property and fled.
There was no dispute that defendant was using a cell phone and number belonging to his cousin, afact he admitted. The prepaid cell phone linked to Dozier, which the victim had called two days earlierto speak with Dozier, had been obtained in March 2007 using an apparent alias and the e-mail andunlisted phone number of a female friend of Dozier, who testified that Dozier possessed that informationand that she never used that cell phone. Cell phone records from the cell phone numbers used bydefendant and Dozier were reviewed by a State Police investigator and admitted into evidence,establishing that defendant and Dozier placed eight separate calls to one another between 4:12 a.m. and6:24 a.m. the morning of the attack, revealing their ongoing communication during the time immediatelypreceding and right after the attack. An investigator for the People reviewed the records and testifiedthat there were 64 telephone calls made between the cell phone numbers of defendant, Dozier and thevictim in the five days preceding the attack.
Contrary to defendant's contentions, the victim's testimony was not unworthy of belief, despite hercriminal history, and was supported by the cell phone records. In our view, neither the fact thatdefendant's motive and prior relationship with Dozier were not known nor the lack of direct proofundermined the jury's verdict, which was based in large measure on its firsthand ability to assess thevictim's credibility, to which we accord great deference (see People v Bleakley, 69 NY2d at495; People v Davis, 72 AD3d1274, 1275-1276 [2010]). Weighing all of the testimony and evidence and the inferences to bedrawn therefrom, the jury rationally concluded that defendant arranged with Dozier to bring the victimto a hotel and leave the door unlocked; defendant then advised Dozier of their location, therebyintentionally aiding Dozier's attack while sharing his intent, readily inferable from defendant's conductand the surrounding [*3]circumstance, to cause her serious physicalinjury (see Penal Law §§ 20.00, 125.05 [1]; see also People v Kaplan,76 NY2d 140, 144 [1990]; People vBush, 75 AD3d 917, 918 [2010]; People v Valderrama, 285 AD2d 902, 903[2001], lv denied 97 NY2d 659 [2001]). Thus, this claim is rejected.
We are also unpersuaded by defendant's argument that County Court's denial of his motion for aseverance was an abuse of discretion. Defendant does not dispute that joinder was proper (seeCPL 200.40 [1]) and, given that both defendants were charged with acting in concert and proof againstthem was supplied by the same evidence, the public policy favoring joinder is particularly strong(see People v Cardwell, 78 NY2d 996, 997 [1991]; People v Mahboubian, 74 NY2d174, 183 [1989]). "[O]nly the most cogent reasons warrant a severance" (People v Bornholdt,33 NY2d 75, 87 [1973], cert denied 416 US 905 [1974]). We reject defendant's claim thathe was prejudiced by the testimony regarding Dozier's dispute with the victim two days before theattack, as that testimony established the basis for the victim's ability to identify Dozier as the assailantand his cell phone number, which would have been admissible at trial had defendant been triedseparately. While that evidence also established Dozier's motive, it was not used to implicate defendantin that dispute or to suggest his motive, which was not explained at trial. Moreover, both defenses werepredicated on their assertions that they did not know one another and had not participated in cell phonecalls to the other or in the attack. As defendant failed to demonstrate that their defenses were"antagonistic, mutually exclusive or irreconcilable" (People v Melendez, 285 AD2d 819, 822[2001], lv denied 97 NY2d 731 [2002]) or that he suffered undue prejudice (see CPL200.40 [1]; People v Mahboubian, 74 NY2d at 184), we discern no abuse of discretion indenying his motion for a severance.
Kavanagh, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Dozier was convicted as charged.