| People v Daniels |
| 2012 NY Slip Op 05343 [97 AD3d 845] |
| July 5, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Christopher Daniels, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered September 15, 2010, upon a verdict convicting defendant of the crimes of attemptedmurder in the second degree (two counts), assault in the first degree (two counts), criminalpossession of a weapon in the third degree, unlawful imprisonment in the first degree andattempted arson in the second degree.
Defendant allegedly attempted to start a fire around midnight in the kitchen of his rentedcottage while his girlfriend, victim A, and her 17-year-old daughter, victim B, were in thebedroom. After the fire was quickly extinguished, he later physically attacked the two womenduring the ensuing early morning hours. Pertinent events started when defendant and victim Apicked up victim B on January 28, 2010 for an overnight visit at their residence in the Village ofLake George, Warren County. Defendant and victim A, whose relationship had beendeteriorating, engaged in a series of verbal confrontations during the evening and eventually thetwo women retreated to the only bedroom in the cottage. They awoke around midnight to thesmell of smoke, discovering stove burners on high with a smoking towel on top of the stove anda charred tampon in the oven as defendant watched from nearby. The women were able toextinguish the fire and, although police were summoned, by the time they arrived, the cottage hadbeen aired out and victim B told police that she had called because defendant and victim A werearguing; nothing was reported about the fire.[*2]
The women returned to the bedroom, intent on stayingawake all night. However, both fell asleep. They awoke as defendant attacked them, repeatedlystriking each in the face and body with his fists and also using a knife while stating that he wasgoing to kill them. Defendant finally stopped the attack after victim B convinced him that, if hecalled police, they would all claim that a burglar had caused their injuries. He then tied victim B'swrists behind her back, attempted to wash blood off victim A in the bathroom, and eventuallycalled 911.
Defendant was indicted on two counts of attempted murder in the second degree, two countsof assault in the first degree, criminal possession of a weapon in the third degree, unlawfulimprisonment in the first degree and attempted arson in the second degree. A jury convicted himon all counts. He was sentenced to consecutive prison terms of 25 years on the two attemptedmurder counts, a series of concurrent prison terms on the other counts except unlawfulimprisonment—for which his 2-to-4-year sentence was made consecutive—resultingin an aggregate prison term of 52 to 54 years plus postrelease supervision. Defendant appeals.
Defendant argues that all his convictions, except criminal possession of a weapon in the thirddegree, were not supported by legally sufficient evidence and were against the weight of theevidence. We find merit in defendant's legal sufficiency arguments as to two of the counts,assault in the first degree as to victim B (count 4) and unlawful imprisonment in the first degree(count 6). In our legal sufficiency review, we view the evidence in the light most favorable to thePeople and determine whether there is any valid line of reasoning and permissible inferencesleading to the conclusion that each element of the crime was established by the requisite level ofproof (see People v Ramos, 19NY3d 133, 136 [2012]; People v Bleakley, 69 NY2d 490, 495 [1987]).
Assault in the first degree requires proof that "[w]ith intent to cause serious physical injury toanother person, [defendant] causes such injury to such person . . . by means of adeadly weapon or dangerous instrument" (Penal Law § 120.10 [1]). Serious physical injuryis defined as "physical injury which creates a substantial risk of death, or which causes death orserious and protracted disfigurement, protracted impairment of health or protracted loss orimpairment of the function of any bodily organ" (Penal Law § 10.00 [10]). There wasample evidence that defendant used a dangerous instrument (a knife) and that he intended to killvictim B; however, the proof regarding the injuries she actually sustained did not satisfy thedefinition of a serious physical injury. The People rely on victim B's headaches and left kneeproblems to show a serious physical injury. Although stabbed in the head (not penetrating theskull) and suffering a concussion, together with residual headaches, victim B acknowledged thatshe was no longer experiencing headaches some six months later at the time of the trial. Shestated that the only continuing physical problem she had was a "kind of sore [knee] every once ina while," but she was able to resume playing soccer and the medical evidence regarding her kneefailed to establish a serious physical injury within the meaning of the statute. Under thecircumstances, we conclude that the conviction of assault in the first degree under count 4 mustbe reduced to attempted assault in the first degree (see People v Tucker, 91 AD3d 1030, 1032 [2012]; People v Gray, 30 AD3d 771, 773[2006], lv denied 7 NY3d 848 [2006]).
Unlawful imprisonment in the first degree is comprised of restraining another person "undercircumstances which expose [that person] to a risk of serious physical injury" (Penal Law §135.10). For the restraint element of this crime, the People relied upon the fact that defendanttied victim B's hands behind her back. Although this clearly constitutes restraint, by the time thatdefendant tied victim B's hands, he had stopped his physical assault and turned to the strategy[*3]suggested by victim B of attempting to make it appear thatthe whole incident had been perpetrated by an unidentified burglar. Defendant brought victim Binto the bathroom where he was attempting to wash blood off victim A and, during this time,victim B's hands came untied. There is no evidence that defendant's conduct exposed victim B toa risk of serious physical injury when her hands were tied and, accordingly, the conviction undercount 6 is reduced to unlawful imprisonment in the second degree (see People v Perry,181 AD2d 833, 834 [1992]).
Review of the record reveals legally sufficient evidence to sustain the remaining counts ofwhich defendant was convicted. Further, after independently viewing the evidence in a neutrallight and according deference to the jury's credibility determinations, we find that the weight ofthe evidence supports the verdict on each of the remaining counts (see People v Romero, 7 NY3d633, 643 [2006]; People v Bleakley, 69 NY2d at 495).
County Court erred in denying defendant's request to charge assault in the second degree as alesser included offense of assault in the first degree regarding count 3 involving victim A. "[I]f arequest is made by either party the court must, 'submit in the alternative any lesser includedoffense if there is a reasonable view of the evidence which would support a finding that thedefendant committed such lesser offense but did not commit the greater' " (People vGreen, 56 NY2d 427, 430 [1982], quoting CPL 300.50 [1]; see People v Carota, 93 AD3d1072, 1075 [2012]; People vHartman, 4 AD3d 22, 23-24 [2004]). It is undisputed that assault in the first degreeunder Penal Law § 120.10 (1) cannot be committed without concomitantly committingassault in the second degree under Penal Law § 120.05 (1). Thus, as relevant here, theissue distills to whether, when viewing the evidence in the light most favorable to defendant,there was a reasonable view of the evidence that the serious physical injury sustained by victimA—a significantly depressed left orbital fracture—was inflicted by defendant's fistrather than the knife he was wielding. Since competent, conflicting evidence was presentedregarding whether the pertinent injury was caused by a fist or knife, defendant's request for thelesser included charge of assault in the second degree as to count 3 should have been granted.Accordingly, we must reverse the conviction for such count and remit for a new trial on thatcharge (see People v Van Norstrand, 85 NY2d 131, 136 [1995]; People v Caruso, 6 AD3d 980,983-984 [2004], lv denied 3 NY3d 704 [2004]).
Defendant's further contention that he was entitled to a lesser included offense chargeregarding unlawful imprisonment in the first degree has been rendered moot by our reduction ofsuch charge to unlawful imprisonment in the second degree. His remaining arguments regardinglesser included charges on other offenses have been considered and are unpersuasive.
Defendant argues that County Court erred in denying his motion to suppress evidenceobtained from a warrantless entry of his cottage. Defendant's motion, which was made during thetrial, was initially denied as untimely. However, County Court also conducted a hearing anddenied the motion on the merits. Defendant had sufficient knowledge of the evidence well inadvance of trial and, with due diligence, could have raised the issue in a timely fashion. Undersuch circumstances, County Court did not err in initially denying the motion as untimely(see CPL 255.20 [1], [3]; Peoplev Garcia, 22 AD3d 880, 881 [2005]; People v Graham, 258 AD2d 387, 387[1999], lv denied 93 NY2d 899 [1999]; People v Franklin, 127 AD2d 685, 685[1987]). The motion was also properly denied on the merits in light of the fact that defendantsummoned police to the residence with a report of a burglary and stabbing, upon arriving policeencountered victim B running out of the cottage reporting that defendant had a knife and hadstabbed her and her mother, and police could see through the open door that defendant wascovered with blood [*4]and victim A was sitting on the couch(see People v Danziger, 41 NY2d 1092, 1093-1094 [1977]). The securing of the sceneand recovery of evidence readily apparent therein within about an hour of arriving "did notexceed the scope and duration of the emergency" (People v Desmarat, 38 AD3d 913, 915 [2007], lv denied 9NY3d 842 [2007]; see People vGeorge, 7 AD3d 810, 811 [2004], lv denied 3 NY3d 674 [2004]).
In light of defendant's criminal history and the brutal nature of his crimes, County Court didnot abuse its discretion in the sentence it imposed and there are no extraordinary circumstanceswarranting a reduction thereof (seePeople v Blackman, 90 AD3d 1304, 1310-1311 [2011]; People v Masters, 36 AD3d 959,960-961 [2007], lv denied 8 NY3d 925 [2007]; People v Polanco, 13 AD3d 904, 907 [2004], lv denied 4NY3d 802 [2005]).
Peters, P.J., Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is modified,on the law, by (1) reversing defendant's conviction of assault in the first degree under count 3 ofthe indictment, (2) reducing defendant's conviction of assault in the first degree under count 4 ofthe indictment to attempted assault in the first degree, and (3) reducing defendant's conviction ofunlawful imprisonment in the first degree under count 6 of the indictment to unlawfulimprisonment in the second degree; sentences imposed on counts 3, 4 and 6 vacated, and matterremitted to the County Court of Warren County for resentencing on counts 4 and 6 and a newtrial on count 3; and, as so modified, affirmed.