| People v Boyd |
| 2012 NY Slip Op 05563 [97 AD3d 898] |
| July 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Michael S.Boyd, Appellant. |
—[*1] Nichole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered November 12, 2010, upon a verdict convicting defendant of the crime of assault inthe second degree.
Defendant was indicted for assault in the second degree resulting from an incident duringwhich he repeatedly punched a fellow inmate in the right eye while incarcerated at a correctionalfacility. Following a jury trial, defendant was convicted as charged and sentenced, as a secondfelony offender, to six years in prison followed by 10 years of postrelease supervision. Heappeals.
Defendant first claims that his conviction was based upon legally insufficient evidence andwas against the weight of the evidence, specifically contesting whether the proof established thathe caused the victim to suffer a physical injury. Viewing the evidence in the light most favorableto the People, we cannot agree that there exists no "valid line of reasoning and permissibleinferences which could lead a rational person to . . . conclu[de]" (People vBleakley, 69 NY2d 490, 495 [1987]) that the victim suffered an "impairment of [his]physical condition or substantial pain" (Penal Law § 10.00 [9]; see People v Dove, 86 AD3d 715,716 [2011], lv denied 17 NY3d 903 [2011]). Photographs of the victim's injury taken justhours after [*2]the incident show obvious redness and swelling tohis right eye, which he testified became darker and more pronounced with time. The victimtestified further that his eye remained tender for about a week and a half following the incidentand that, during that time, he suffered recurring headaches, some lasting for hours, andexperienced "sharp pain" when he looked at light. Medical records from the correctional facilityindicate that he also reported ringing in his right ear and was treated with an ice pack and painmedication. Despite the victim's characterization of the resulting pain during the week followingthe incident as "mild," it was within the province of the jury to conclude, based upon the victim'sother descriptions of his injury and the documentary evidence, that defendant's blows broughtmore than "slight or trivial pain" (Peoplev Chiddick, 8 NY3d 445, 447 [2007]; see People v Fisher, 89 AD3d 1135, 1136 [2011], lv denied18 NY3d 883 [2012]; People v Bernier, 279 AD2d 701, 703 [2001], lv denied 96NY2d 797 [2001]; People v Williams, 203 AD2d 608, 608 [1994], lv denied 83NY2d 973 [1994]; People v Gray, 189 AD2d 922, 923 [1993], lv denied 81NY2d 886 [1993]). Furthermore, upon considering this proof and the conflicting evidenceprovided by defendant, the jury's finding that the victim suffered a physical injury is supported bythe weight of the evidence (see People vPerser, 67 AD3d 1048, 1049 [2009], lv denied 13 NY3d 941 [2010]; People v Williamson, 21 AD3d575, 575-576 [2005], lv denied 6 NY3d 761 [2005]).
Defendant next contends that County Court erred in admitting into evidence a copy of thecorrectional facility surveillance video depicting the incident. Again, we cannot agree. Thedecision to admit videotape evidence rests within the sound discretion of the trial court and willnot be disturbed absent a lack of foundation for its introduction or a demonstrated abuse of thecourt's discretion (see People v Patterson, 93 NY2d 80, 84 [1999]). Here, the recordingwas authenticated by two correction officers at the facility. The first, who oversees the facility'ssecurity system, testified that he personally made an exact copy of the footage from thesurveillance system onto the unaltered compact disc admitted at trial. The second, who witnessedthe altercation firsthand, testified that the video recording was a fair and accurate depiction of theincident (see id.; People vLee, 80 AD3d 1072, 1073-1074 [2011], lv denied 16 NY3d 832 [2011];People v Fondal, 154 AD2d 476, 477 [1989], lv denied 75 NY2d 770 [1989]; compare People v Roberts, 66 AD3d1135, 1136-1137 [2009]). Although defendant takes issue with the lapse between the video'sframes, upon our independent review of the recording we find that these minor breaks do notinvite undue speculation of the events depicted so as to preclude its admission into evidence(see People v McGee, 49 NY2d 48, 60 [1979]; People v Orlando, 61 AD3d 1001, 1002 [2009], lv denied13 NY3d 837 [2009]; People v Raco, 168 AD2d 806, 807 [1990], lv denied 77NY2d 910 [1991]).
Nor did County Court err when it denied defendant's motion to suppress a statement that hemade to a correction officer shortly after the incident. Assuming, without deciding, thatdefendant was in custody when, in response to an inquiry by an officer, he stated that he punchedthe victim "because he wrote statements on me,"[FN*]we find any error in the admission of the statement to be harmless inasmuch as there is noreasonable possibility that it might have contributed to the conviction (see People vCrimmins, 36 NY2d 230, 237 [1975]; People v O'Connor, 6 AD3d 738, 740 [2004], lv denied 3NY3d 645 [2004]; People v Bastian, 294 AD2d 882, 884 [2002], lv denied 98NY2d 694 [2002]).[*3]
Defendant was not deprived of a fair trial by CountyCourt's denial of his request for a justification charge. Such a charge need only be given where,viewing the evidence in the light most favorable to the defendant, "any reasonable view of theevidence might lead the jury to decide that the defendant's actions were justified" (People v Curry, 85 AD3d 1209,1211 [2011], lv denied 17 NY3d 815 [2011]; see People v Johnson, 91 AD3d 1121, 1122 [2012], lvdenied 18 NY3d 959 [2012]). As there is no proof that the victim was the initial aggressor orthreatened an injury to defendant that was "actual and at hand" (People v Kravitz, 75 AD3d 915,916 [2010], lv denied 15 NY3d 894 [2010] [internal quotation marks and citationomitted]), we find no reasonable view of the evidence to support the charge (see People vJohnson, 91 AD3d at 1122; Peoplev Pine, 82 AD3d 1498, 1500 [2011], lv denied 17 NY3d 820 [2011]).
We do, however, agree with defendant that the 10-year period of postrelease supervisionimposed by County Court was illegal. Defendant was found guilty of assault in the second degree(see Penal Law § 120.05 [7]) and sentenced, as a second felony offender, to adeterminate term of six years in prison (see Penal Law § 70.06 [6] [c]). Thus, andas the People concede, the only permissible term of postrelease supervision was five years(see Penal Law § 70.45 [2]).
Lahtinen, Spain, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is modified, onthe law, by reducing the period of postrelease supervision to five years, and, as so modified,affirmed.
Footnote *: The victim had previouslyprovided law enforcement with a statement implicating defendant in a crime in exchange for aplea agreement that the victim received in March 2008.