| People v Smith |
| 2011 NY Slip Op 07752 [89 AD3d 1148] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v PaulSmith, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Devin J. Anderson of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered November 19, 2009, upon a verdict convicting defendant of the crime of assault in thesecond degree.
Defendant, while incarcerated in a state prison, was involved in a fight with another inmate. Whencorrection officers intervened, defendant head-butted one of them. As a result, defendant was chargedwith two counts of assault in the second degree. Following trial, he was convicted of one count. CountyCourt sentenced him, as a second violent felony offender, to seven years in prison, followed by fiveyears of postrelease supervision, to run consecutively to his prior sentences. Defendant appeals.
The conviction was supported by legally sufficient evidence and was not against the weight of theevidence. As charged here, the People were required to prove that defendant was confined in acorrectional facility pursuant to a prior conviction, he intended to cause physical injury to anotherperson, and he "cause[d] such injury to such person or to a third person" (Penal Law § 120.05[7]). The parties stipulated to defendant's prior convictions. The incident occurred in a correctionalfacility where defendant was confined. Two correction officers testified that, while they were separatingdefendant from another inmate with whom he was fighting, defendant head-butted one of the officers. Acorrection sergeant and officer each testified that, during an [*2]interview after the incident, defendant admitted that he head-butted theperson who restrained him. Medical personnel testified that the injured correction officer sustained aconcussion and neck and back strain, and the officer testified that he missed five months of work due tothe injuries inflicted by defendant. This evidence was legally sufficient to establish the elements of assaultin the second degree. Defendant testified that he was confined in a correctional facility, engaged in afight with another inmate, continued to throw punches after being ordered to stop fighting, and wasrestrained and knocked to the floor by correction officers. Although he denied head-butting anyone andtestified that he never made any such admission when questioned by the correction sergeant, the jurydisbelieved those portions of his testimony. Giving deference to the jury's credibility determinations (see People v Romero, 7 NY3d 633,644-645 [2006]), the conviction was not against the weight of the evidence.
County Court did not address defendant's motion to suppress his statement to the correctionsergeant. After counsel stated that defendant was waiving his right to a Huntley hearing, thecourt placed defendant under oath and questioned him to ensure that defendant understood the effectsof his waiver. Without a hearing, we cannot determine whether defendant's statement was involuntary(see People v Corti, 88 AD2d 345, 347 [1982]). Considering the explicit waiver and lack of arecord to review the suppression motion, this Court will not now review the issue.
Aside from his arguments that he did not receive the effective assistance of counsel and that hissentence is harsh and excessive, defendant's remaining arguments are unpreserved for our reviewbecause he failed to raise them in County Court. Accordingly, we will only address those unpreservedarguments to the extent that they are relevant to counsel's performance. Counsel's decision to waive theHuntley hearing could represent a reasoned judgment that the motion was unsupportable, asthere is no evidence suggesting that defendant's statement was involuntary, and we will notsecond-guess counsel's reasoned professional determinations (cf. People v Merrill, 27 AD3d 773, 774 [2006], lv denied 6NY3d 896 [2006]). Counsel was not ineffective for failing to object to the People's summation,because the prosecutor's comments were entirely proper (see People v Lamont, 21 AD3d 1129, 1131-1133 [2005], lvdenied 6 NY3d 835 [2006]; People v Grajales, 294 AD2d 657, 658-659 [2002], lvdenied 98 NY2d 697 [2002]).
Defendant also contends that counsel should have objected, moved to dismiss the indictment orsought an adverse inference charge due to the destruction of evidence. The People initially stated thatdefendant's interview by the correction sergeant after the incident was memorialized on videotape. TheDepartment of Correctional Services informed the People—and its employees testified attrial—that after an incident involving an injury to staff, a videotape is made of the inmate beinginterviewed, examined by medical personnel and escorted to his or her cell. The tape is made to recordany further violence by the inmate and to ensure that no staff used unnecessary force or retaliatedagainst the inmate for injuring a fellow staff member. Once a supervisor reviews the tape to ensure thatthe inmate and staff behaved properly—as happened here—the tape is recycled; tapesare apparently only preserved if further violence or force are recorded. The Department does notrecord the inmate for purposes of prosecution related to the initial incident.
The destruction of the tape did not violate defendant's rights under Brady v Maryland (373US 83 [1963]) or People v Rosario (9 NY2d 286 [1961], cert denied 368 US 866[1961]), because the videotape was never under the control or in the possession of the People or itsagents, but was instead in the possession of an administrative agency that was not performing law [*3]enforcement functions (see People v Kelly, 88 NY2d 248, 253[1996]; People v Howard, 87 NY2d 940, 941 [1996]; People v Figueroa, 53 AD3d 779, 781 [2008], lv denied 11NY3d 832 [2008]; People v Ross, 282 AD2d 929, 931 [2001], lv denied 96 NY2d907 [2001]). For the same reason, defendant was not entitled to an adverse inference charge (seePeople v Figueroa, 53 AD3d at 781). The officer who operated the video camera and the sergeantwho interviewed defendant both testified; therefore, defendant's right to confrontation was not violateddespite the destruction of the videotape (see Crawford v Washington, 541 US 36, 59 n 9[2004]). The motions and objections defendant now asserts that his counsel should have made wouldnot have been successful. Accordingly, counsel provided meaningful representation.
Finally, considering defendant's criminal history, that he was in prison when he committed this crimeand the injury that he inflicted upon a correction officer, the sentence was not harsh or excessive (see People v Cioto, 80 AD3d 875,877 [2011], lv denied 16 NY3d 829 [2011]).
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.