| People v Fisher |
| 2011 NY Slip Op 07747 [89 AD3d 1135] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jackie J. Fisher,Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered April 3, 2009, upon a verdict convicting defendant of the crime of assault in the seconddegree.
Defendant was charged with assault in the second degree stemming from an incident during whichhe inflicted multiple stab wounds upon his mother's then-boyfriend, George Wilson. The trial evidenceestablished that, during the early morning hours of October 25, 2008, a number of individuals wereconsuming alcohol at the apartment shared by defendant and his mother, Dorothy Jean Moye. At somepoint, Moye and Wilson began arguing and Wilson physically assaulted Moye. The police were calledand, upon their arrival, Wilson was instructed to leave the apartment. Undaunted, Wilson returnedshortly thereafter and, according to defendant and his girlfriend, Ashley Munson, began brandishingknives and making threatening statements towards them. After discarding the knives, Wilson went intoMoye's bedroom where he again engaged in a verbal and physical altercation with her. Defendant andhis brother, Donielle Fisher, then proceeded to enter the bedroom and confront Wilson. During theconfrontation, Fisher struck Wilson in the head with a baseball bat, causing a large gash upon Wilson'sforehead that resulted in a substantial amount of blood. Wilson left the apartment following this incident,but returned yet again. While Wilson was in the bedroom with Moye, defendant and Fisher retrievedknives from the kitchen and entered the bedroom to again confront Wilson. It was during thisconfrontation that defendant repeatedly stabbed Wilson.[*2]
Following a jury trial, defendant was found guilty of assault inthe second degree and sentenced to a prison term of four years, to be followed by five years ofpostrelease supervision. He was also ordered to pay restitution in the amount of $3,448.86 for Wilson'smedical expenses, but this amount was subsequently reduced by County Court to $671.50. Defendantappeals.
Defendant claims that the verdict is not supported by legally sufficient evidence and is against theweight of the evidence, specifically arguing that the proof did not support a finding that Wilson suffereda physical injury and that the People failed to disprove the defense of justification beyond a reasonabledoubt. His challenge to the legal sufficiency of the evidence is unpreserved for our review inasmuch ashe presented evidence after his unsuccessful motion to dismiss and failed to renew the motion at theclose of all proof (see People v Lane, 7NY3d 888, 889 [2006]; People vDancy, 87 AD3d 759, 760 [2011]; People v Vargas, 72 AD3d 1114, 1116 [2010], lv denied 15NY3d 758 [2010]). Since defendant also attacks the verdict as against the weight of the evidence, wewill consider his arguments in the context of that review.
Physical injury is an "impairment of physical condition or substantial pain" (Penal Law §10.00 [9]). "A variety of factors are relevant in determining whether physical injury has beenestablished, including the injury viewed objectively, the victim's subjective description of the injury and[his or] her pain, and whether the victim sought medical treatment" (People v Dixon, 62 AD3d 1036, 1039 [2009], lv denied 12NY3d 914 [2009] [internal quotation marks and citation omitted]; accord People v Dove, 86 AD3d 715, 716 [2011]). Here, defendantstabbed Wilson approximately 13 times in various areas around his back, shoulder, arm and head, withthe force of the blows causing the blade of the knife to bend. Following the incident, Wilson walked tothe hospital where his wounds were treated and he was prescribed pain medication. Although heultimately refused further treatment and left the hospital later that morning, Wilson explained that he didso because he did not have insurance and could not afford to incur any further medical bills. Hedescribed continuing pain in his chest and arms that lasted for approximately one month and made itdifficult to move, rendering him unable to work and perform certain routine activities, such as dressinghimself. He testified further that, at the time of trial, he continued to experience pain in his shoulder dueto the scar tissue that had formed from the stab wounds. Based on this proof, we are satisfied that theweight of the evidence supports the jury's finding that Wilson suffered a physical injury (see People v Perser, 67 AD3d 1048,1049 [2009], lv denied 13 NY3d 941 [2010]; People v Dixon, 62 AD3d at 1039; People v Rivera, 42 AD3d 587,588-589 [2007], lv denied 9 NY3d 880 [2007]).
We next address defendant's assertion that the People failed to disprove the defense of justification.Use of deadly physical force is justified when, as relevant here, a defendant reasonably believes thatsuch force is necessary to prevent or terminate a burglary of his or her dwelling or to protect against theuse or imminent use of deadly physical force (see Penal Law § 35.15 [1], [2] [a], [c];§ 35.20 [3]; People v Scharpf, 60AD3d 1101, 1102 [2009], lv denied 13 NY3d 862 [2009]). "Evaluation of the actor'sbelief 'requires a determination of reasonableness that is both subjective and objective . . .The critical focus must be placed on the particular defendant and the circumstances actually confrontinghim at the time of the incident, and what a reasonable person in those circumstances and havingdefendant's background and experiences would conclude' " (People v DiGuglielmo, 75 AD3d 206, 215 [2010], affd 17NY3d 771 [2011], quoting People v Wesley, 76 NY2d 555, 559 [1990]; see People vGoetz, 68 NY2d 96, 114-115 [1986]).
Here, Wilson testified that he did not possess any weapons upon his final entry into the [*3]apartment and that he only returned in order to gather his belongings andseek assistance getting to the hospital for the head injuries that he sustained from being struck with thebaseball bat by Fisher. Munson's testimony was confirmatory. Moreover, according to both Wilson andMunson, Wilson was speaking with Moye in the bedroom when defendant and Fisher appeared at thedoorway with knives. Both further explained that, although Moye put her hands across the doorwayand instructed the two that "everything is fine" and she would "handle it," defendant and Fisher pushedMoye aside and entered the room. Wilson testified that he stumbled and fell to the ground as he wasbacking up out of fear, after which both defendant and Fisher got on top of him and began stabbinghim. He stated that he did not threaten them prior to the attack nor did he make any movementstowards an object that could be used as a weapon. Defendant, on the other hand, testified that when heand Fisher entered Moye's bedroom and instructed Wilson to leave, Wilson took an "aggressiveposture" towards him as if he was going to attack, at which point defendant pulled a knife out of hisback pocket. On cross-examination, defendant conceded that he never saw a weapon or dangerousinstrument in Wilson's possession and that Wilson was not reaching for anything in the room that couldbe used as a deadly weapon. According to defendant, Wilson then grabbed ahold of him and a struggleensued, during the course of which he stabbed Wilson.
Evaluating all of the evidence in a neutral light and according due deference to the jury's credibilityassessments (see People v Terry, 85AD3d 1485, 1487 [2011]; People v Mothon, 284 AD2d 568, 570 [2001], lvdenied 96 NY2d 865 [2001]), we conclude that the jury's rejection of the justification defense wasnot against the weight of the evidence. Notwithstanding the evidence of Wilson's prior violent conducttowards defendant and the events that transpired throughout the day of the incident, there was amplesupport—including defendant's own description of Wilson's conduct prior to thestabbing—for the jury to conclude that it was not reasonable for defendant to believe that, duringthe time frame in question, Wilson was about to use deadly physical force against him (see People v Newman, 26 AD3d 589,591 [2006], lv denied 7 NY3d 815 [2006]; People v Terk, 24 AD3d 1038, 1039 [2005]; People vMothon, 284 AD2d at 570; People v Torres, 252 AD2d 60, 65 [1999], lvdenied 93 NY2d 1028 [1999]). That is, even if defendant subjectively believed that the use ofdeadly physical force was imminent, the weight of the evidence supports the conclusion that such beliefwas not objectively reasonable under the circumstances. Furthermore, considering the testimony thatWilson was not argumentative but, rather, was requesting assistance to get to the hospital upon his finalentry into the apartment, the jury's rejection of the justification defense as it related to preventing orterminating a burglary was not contrary to the weight of the evidence (see People v Cox, 92NY2d 1002, 1005 [1998]; People vWhite, 75 AD3d 109, 118-119 [2010], lv denied 15 NY3d 758 [2010]; Peoplev Levy, 186 AD2d 66, 67 [1992], lv denied 80 NY2d 975 [1992]).
Defendant next raises a number of challenges to County Court's jury instructions on the defense ofjustification. First, with respect to that portion of the charge relating to the use of deadly physical forceto prevent a burglary, defendant argues that the court improperly limited the jury's consideration towhether Wilson entered the home to commit an assault. We disagree. While a court must provide ajustification instruction when, viewing the evidence in the light most favorable to the defendant, there isany reasonable view of the evidence to support the defense (see People v Padgett, 60 NY2d142, 144-145 [1983]; People v Curry,85 AD3d 1209, 1211 [2011], lv denied 17 NY3d 815 [2011]), it is equally true that "theparticular justification instruction given to the jury must be consistent with the facts" (People vMothon, 284 AD2d at 569). Here, the theory of the defense, as made clear by defendant'stestimony and propounded by counsel during his opening and closing statements, was that Wilsonentered the apartment with [*4]the intent to commit an assault upon oneor more of its occupants. As County Court noted, there is no reasonable view of the evidence thatWilson entered defendant's home to commit any crime other than an assault. Thus, under the facts andcircumstances of this case, we discern no error in County Court's instruction in this regard. Theremaining challenges raised to the court's justification instruction are not preserved for our review (see People v Brunson, 68 AD3d 1551,1553 [2009], lv denied 15 NY3d 748 [2010]) and, in any event, are without merit.
We are similarly unpersuaded by defendant's contention that he was denied the effective assistanceof counsel. Defendant faults counsel for failing to object to a comment made by the prosecutor duringsummation which, he claims, called upon the jury to assume the role of a community avenger. Whilebetter left unsaid, this isolated remark did not reflect flagrant and pervasive misconduct on the part ofthe prosecutor and was "not so prejudicial to defendant as to render counsel's failure to object to [it]evidence of ineffective assistance of counsel" (People v Albanese, 38 AD3d 1015, 1019 [2007], lv denied 8NY3d 981 [2007]; see People vMcCall, 75 AD3d 999, 1002 [2010], lv denied 15 NY3d 894 [2010]; People v Hunt, 39 AD3d 961,963-964 [2007], lv denied 9 NY3d 845 [2007]). Likewise, given the evidence adduced attrial, we are unconvinced that counsel's failure to pursue an intoxication defense constituted ineffectiveassistance (see People v Robetoy, 48AD3d 881, 882 [2008]; People v VanNess, 43 AD3d 553, 555 [2007], lv denied 9 NY3d 965 [2007]; People vKeller, 175 AD2d 312, 313-314 [1991], lv denied 78 NY2d 1128 [1991]). Additionally,as defendant's challenges to County Court's justification charge are meritless, counsel cannot bedeemed ineffective for failing to raise these issues before County Court. Rather, the record reflects thatdefense counsel made appropriate pretrial motions, competently cross-examined witnesses and putforth a reasonable defense of justification which he clearly and consistently developed throughout thetrial. Considering the totality of the circumstances, defendant was provided with meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi,54 NY2d 137, 147 [1981]).
Finally, defendant's contention that County Court erred in failing to conduct a restitution hearing isunpreserved for our review (see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Francis, 82 AD3d 1263[2011], lv denied 17 NY3d 795 [2011]; People v Waugh, 52 AD3d 853, 856 [2008], lv denied 11NY3d 796 [2008]; People v Golgoski,40 AD3d 1138, 1138 [2007]), and we have considered the sentence imposed by County Courtand find it to be neither harsh nor excessive.
Mercure, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.