| People v Myers |
| 2011 NY Slip Op 06313 [87 AD3d 826] |
| August 19, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Nathaniel Myers, Appellant. (Appeal No. 1.) |
—[*1] Nathaniel Myers, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Christopher P. Jurusik of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedFebruary 16, 2010. The judgment convicted defendant, upon a nonjury verdict, of assault in thesecond degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him followinga bench trial of assault in the second degree (Penal Law § 120.05 [2]) and criminalpossession of a weapon in the third degree (§ 265.02 [1]) and, in appeal No. 2, defendantappeals from a judgment convicting him following the same bench trial of criminal contempt inthe second degree (§ 215.50 [3]). Defendant failed to preserve for our review hiscontention in appeal No. 1 that the evidence is legally insufficient to establish that the victim, hisex-wife, sustained a physical injury to support the conviction of assault (see People vGray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit. A person isguilty of assault in the second degree when, "[w]ith intent to cause physical injury to anotherperson, he [or she] causes such injury to such person . . . by means of a deadlyweapon or dangerous instrument" (§ 120.05 [2]). Physical injury is defined as "impairmentof physical condition or substantial pain" (§ 10.00 [9]). Here, the evidence presented attrial established that defendant struck the victim in the head with a glass liquor bottle, knockingher to the ground. The victim was bleeding from the wound and was taken to the hospital, whereshe received pain medication, a hematoma on her head was drained, and she received stitches.The victim described the pain after it occurred as "more than ten" on a scale of 1 to 10. She wasprescribed a narcotic drug for pain relief, and she testified that she continued to have pain in thedays that followed. She returned to the hospital five more times for further treatment of herwound, and the wound has left a scar. Viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is avalid line of reasoning and permissible inferences that could lead a rational trier of fact to findbeyond a reasonable doubt that the victim sustained a physical injury (see People v Rojas,61 NY2d 726 [1984]; People vKrotoszynski, 43 AD3d 450, 452-453 [2007], lv denied 9 NY3d 962 [2007]; [*2]Peoplev Holmes, 9 AD3d 689, 690-691 [2004], lv denied 3 NY3d 675 [2004]).
Also with respect to appeal No. 1, viewing the evidence in light of the elements of the crimesof assault in the second degree and criminal possession of a weapon in the third degree in thisbench trial (see People v Danielson,9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence with respect to those crimes (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Contrary to defendant's contention, the testimony of the two main prosecutionwitnesses "was not incredible as a matter of law inasmuch as it was not impossible of belief, i.e.,it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory"(People v Harris, 56 AD3d1267, 1268 [2008], lv denied 11 NY3d 925 [2009]; see People v Thomas,272 AD2d 892, 893 [2000], lv denied 95 NY2d 858 [2000]).
Defendant further contends with respect to appeal Nos. 1 and 2 that County Court erred inadmitting in evidence three letters allegedly written by defendant to the victim and a recordedtelephone conversation between defendant and the victim. We reject that contention. Withrespect to the letters, "[c]ircumstantial evidence may satisfy the requirement that a writing beauthenticated before it may be introduced" (People v Murray, 122 AD2d 81, 82 [1986],lv denied 68 NY2d 916 [1986]; see People v Manganaro, 218 NY 9, 13 [1916];Thomas, 272 AD2d at 893). Although the victim testified that the letters were not indefendant's handwriting, the People established a sufficient foundation to admit the letters inevidence (see Thomas, 272 AD2d at 893). "The letters refer to the crime [of assault] andthe circumstances of the prosecution in terms that justify the inference that defendant wrotethem" (id.; see People vBryant, 12 AD3d 1077, 1079 [2004], lv denied 4 NY3d 761 [2005]). In addition,the victim testified that she knew that defendant was the author of the letters based on certaininformation in the letters, including the nicknames of both the victim and defendant (seeBryant, 12 AD3d at 1079; Murray, 122 AD2d at 82). With respect to the recordedtelephone conversation between defendant and the victim while defendant was incarcerated, thePeople established a sufficient foundation for its admission in evidence (see People v Williams, 55 AD3d1398 [2008], lv denied 11 NY3d 901 [2008]; see generally People v Ely, 68NY2d 520, 527-528 [1986]). The victim identified the voice on the tape as defendant's voice, andshe recalled the conversation. In addition, the deputy in charge of maintaining the recordingsystem at the jail described the procedure for recording telephone conversations and testified thatthe recording had not been altered in any way. The People thus established " 'that the offeredevidence [was] genuine and that there [had] been no tampering with it' " (Ely, 68 NY2dat 527; see People v Manor, 38AD3d 1257, 1258 [2007], lv denied 9 NY3d 847 [2007]).
Defendant contends with respect to both appeals that he was denied effective assistance ofcounsel. We reject that contention. Insofar as he contends that defense counsel was ineffective infailing to seek a missing witness charge, we note that defendant failed to establish the absence ofa legitimate explanation for defense counsel's failure to do so (see People v Benevento,91 NY2d 708, 712-713 [1998]; People vMaryon, 20 AD3d 911, 913 [2005], lv denied 5 NY3d 854 [2005]). Indeed,"[a]bsent proof that such witness would have provided noncumulative testimony which wasfavorable to [the prosecution], there was no basis for such a charge" (People v Thomas,299 AD2d 942, 943 [2002], lv denied 99 NY2d 620 [2003] [internal quotation marksomitted]; see generally People v Savinon, 100 NY2d 192, 197 [2003]). Furthermore,contrary to defendant's contention, the fact that defense counsel made a general rather than aspecific motion for a trial order of dismissal is of no moment where, as here, a specific motionwould have had little or no chance of success (see People v Hunter, 70 AD3d 1388, 1389 [2010], lvdenied 15 NY3d 751 [2010]; seegenerally People v Caban, 5 NY3d 143, 152 [2005]). Viewing the evidence, the law andthe circumstances of this case, in totality and as of the time of the representation, we concludethat defendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]).
Finally, in his pro se supplemental brief defendant contends with respect to both appeals[*3]that the court violated Crawford v Washington (541US 36 [2004]) when it admitted in evidence at trial various documents and photographs, i.e.,medical records of the victim, orders of protection, defendant's prior certificate of conviction, andphotographs depicting the victim's injuries. Defendant failed to preserve his contention for ourreview (see CPL 470.05 [2]), and it is without merit in any event. Defendant has notidentified any testimonial statements in the victim's medical records that he contends wereadmitted in violation of Crawford. Inasmuch as the victim testified and was available forcross-examination, any statements attributed to her in the medical records would not violatedefendant's right of confrontation under the Sixth Amendment to the United States Constitution.In addition, the orders of protection were not testimonial in nature (see People v Lino, 65 AD3d 1263,1264 [2009], lv denied 13 NY3d 940 [2010]), and defendant's prior certificate ofconviction also was not admitted in violation of Crawford (see People v McCallie, 37 AD3d1129, 1130 [2007], lv denied 8 NY3d 987 [2007]). Finally, the photographsdepicting the victim's injuries are demonstrative rather than testimonial evidence (seegenerally Crawford, 541 US at 51-53). Present—Smith, J.P., Centra, Fahey, Gorskiand Martoche, JJ.