| People v Ingram |
| 2012 NY Slip Op 03484 [95 AD3d 1376] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vWeldon Ingram, Jr., Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 21, 2011, convicting defendant following a nonjury trial of the crime of assaultin the second degree (two counts).
In January 2010, defendant hit and kicked his girlfriend (hereinafter the victim). In April2010, he punched her repeatedly in the eyes. He was subsequently indicted on two counts ofassault in the second degree and convicted as charged following a nonjury trial. County Courtsentenced defendant to an aggregate prison term of 10½ years with six years of postreleasesupervision.
Defendant appeals, asserting that his convictions are not supported by the weight of theevidence.[FN1]In evaluating this claim, we must first determine whether a different verdict would [*2]have been reasonable and, if so, we "must, like the trier of factbelow, weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; see People v Romero, 7 NY3d633, 643-644 [2006]).
As to the January 2010 incident, the People were required to establish that, "[w]ith intent tocause physical injury to another person, [defendant] cause[d] such injury . . . bymeans of a . . . dangerous instrument" (Penal Law § 120.05 [2]). The victimtestified that, in addition to hitting her with his fists, defendant kicked her in the side whilewearing Timberland boots. She described the boots, which she had bought for him, in hertestimony. A neighbor testified that she heard the victim's screams, saw her attempting to escapefrom her apartment while defendant tried to pull her back in, and then saw defendant flee down astairway. The victim then complained that her ribs hurt, and showed the neighbor bruising on herside. A police officer who responded to the neighbor's 911 call testified that the victim said thatshe had been kicked and her abdomen and ribs were painful. The following day the victim wastreated at an emergency room and diagnosed with a fractured rib. She testified that she was "very,very sore" for two to three weeks thereafter and took prescribed medication for the pain.
We reject defendant's argument that the weight of the evidence failed to establish that heused a "dangerous instrument" (Penal Law § 10.00 [13]). It is well settled that boots mayconstitute dangerous instruments when used to kick a victim (see e.g. People v Carter, 53NY2d 113, 116-117 [1981]; People vHines, 39 AD3d 968, 969 [2007], lv denied 9 NY3d 876 [2007]). The victim'stestimony that defendant wore boots was uncorroborated, but also unrefuted; the investigatingofficer testified that he did not see defendant and did not ask the victim about defendant'sfootwear, and the neighbor testified that she did not notice defendant's footwear, but that he wasotherwise fully clothed in trousers and a leather jacket as he fled from the building (comparePeople v Bidwell, 153 AD2d 960, 961 [1989]). The victim's history of mental illness did notrender her testimony incredible as a matter of law (see People v Blair, 32 AD3d 613, 614 [2006]).[FN2]Granting the requisite deference to County Court's credibility assessments, we find no reason toconclude that it "failed to give the evidence the weight it should be accorded" (People vRomero, 7 NY3d at 643; see People v Taylor, 276 AD2d 933, 935-936 [2000], lvdenied 96 NY2d 788 [2001]).
As to the April 2010 incident, defendant's conviction for assault in the second degree [*3]pursuant to Penal Law § 120.05 (1) required the People toestablish that he intentionally caused "serious physical injury" to the victim, defined in pertinentpart as "physical injury which creates . . . protracted loss or impairment of thefunction of any bodily organ" (Penal Law § 10.00 [10]). The victim testified that she wasawakened by defendant repeatedly punching her in both eyes with a leather-gloved fist; defendantthen cornered and choked the victim and, after she fell on the floor, continued to pummel her inthe face until defendant's mother interrupted the attack by knocking on the locked door.Defendant's mother testified that she summoned a relative to take the victim—who couldno longer see—to the hospital. The victim's treating physicians, including a hospitalist, anophthalmic surgeon and an ophthalmologist specializing in glaucoma, testified that, as a result ofthe attack, the lenses of both of the victim's eyes were dislocated and had to be surgicallyremoved. The victim cannot see without thick eyeglasses, has undergone multiple surgeries,suffers from glaucoma and has sustained irreversible optic nerve damage in both eyes, withparticularly severe damage to the left eye that may progress to blindness. The physicians testifiedthat all of these injuries resulted from the attack. We are unpersuaded by defendant's claims thatthe victim's injuries are not "serious" within the meaning of the statute or that the physicians'opinions as to causation were outweighed by evidence of the victim's hypertension, familyhistory of glaucoma, and occasional noncompliance with her medication regimen. There is noreason to disturb this verdict (see People v Luck, 294 AD2d 618, 619-620 [2002], lvdenied 98 NY2d 699 [2002]; People v Rumaner, 45 AD2d 290, 291-292 [1974]).
Finally, the sentence was neither harsh nor excessive. Defendant's claim that the sentencewas imposed in retaliation for his rejection of a plea offer is both unpreserved and unsupported(see People v Hurley, 75 NY2d 887, 888 [1990]; People v Perkins, 62 AD3d 1160, 1162 [2009], lv denied13 NY3d 748 [2009]). In view of the brutal nature of defendant's conduct and his failure toexpress remorse for its devastating consequences to the victim, we perceive no abuse ofdiscretion or extraordinary circumstances warranting reduction (see People v Eggsware, 89 AD3d1277 [2011]; People v Knapp, 213 AD2d 740, 742 [1995]).
Mercure, J.P., Spain, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant failed to preserve hischallenge to the legal sufficiency of the evidence, as his trial motion to dismiss was not"specifically directed at the error[s] now alleged on appeal" (People v Lumnah, 81 AD3d 1175, 1177 [2011], lv denied16 NY3d 897 [2011]; see People vCarncross, 14 NY3d 319, 324-325 [2010]). His challenge to the weight of the evidencenevertheless requires a review of the evidence supporting each element of the crimes charged (see People v Danielson, 9 NY3d342, 349 [2007]; People vGarcia, 79 AD3d 1248, 1250 [2010], lv denied 16 NY3d 797 [2011]).
Footnote 2: Notably, defense counsel waspermitted to question the victim about her psychiatric history, thus making County Court awareof this issue in assessing her credibility (see People v Patterelli, 68 AD3d 1151, 1153 [2009]; compare People v Plaisted, 2 AD3d906, 909 [2003], lv denied 2 NY3d 744 [2004]; People v Walker, 116 AD2d948, 951 [1986], lv denied 67 NY2d 952 [1986]).