| People v Wyant |
| 2012 NY Slip Op 06439 [98 AD3d 1277] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v MaxwellCharles Wyant, Respondent. |
—[*1] James Nobles, Rochester, for defendant-respondent.
Appeal from an amended order of the Monroe County Court (Douglas A. Randall, J.),entered May 14, 2012. The amended order reduced the sole count of the indictment from murderin the second degree to assault in the first degree.
It is hereby ordered that the amended order so appealed from is unanimously reversed on thelaw, that part of defendant's omnibus motion seeking to dismiss or reduce the sole count of theindictment is denied, that count of the indictment is reinstated, and the matter is remitted toMonroe County Court for further proceedings on the indictment.
Memorandum: The People appeal from an amended order that granted that part ofdefendant's omnibus motion seeking to dismiss or reduce the sole count of the indictment basedon the alleged legal insufficiency of the evidence before the grand jury by reducing that countfrom murder in the second degree (Penal Law § 125.25 [1] [intentional murder]) to assaultin the first degree (§ 120.10 [1]). Initially, we note that County Court erred in reducing thecount to assault in the first degree inasmuch as assault in the first degree is not a lesser includedoffense of intentional murder (see CPL 210.20 [1-a]; People v Alvarez, 38 AD3d 930, 934 [2007], lv denied 8NY3d 981 [2007]; see generally People v Glover, 57 NY2d 61, 63-65 [1982]).
In any event, we agree with the People that the evidence is legally sufficient to support thecount of intentional murder in the second degree. The grand jury "must have before it evidencelegally sufficient to establish a prima facie case, including all the elements of the crime, andreasonable cause to believe that the accused committed the offense to be charged" (People vJensen, 86 NY2d 248, 251-252 [1995]). Legally sufficient evidence is defined as "'competent evidence which, if accepted as true, would establish every element of an offensecharged and the defendant's commission thereof' " (People v Swamp, 84 NY2d 725, 730[1995], quoting CPL 70.10 [1]). The court "must consider whether the evidence, viewed mostfavorably to the People, if unexplained and uncontradicted . . . would warrantconviction" (id.; see Jensen, 86 NY2d at 251).
Here, the People called as a grand jury witness a physician employed by the Monroe CountyMedical Examiner's Office to render an opinion as to the cause of the victim's death. In [*2]determining that the evidence was legally insufficient to establishthat defendant caused the victim's death, the court concluded that the People did not properlyqualify the witness as an expert. That was error. The witness's testimony establishes that she wasqualified to provide expert opinion testimony (see People v Stabell, 270 AD2d 894, 895[2000], lv denied 95 NY2d 804 [2000]). It certainly may be inferred from her testimonythat she was a licensed physician with the requisite training to render her qualified to testify as aforensic pathologist. Even assuming, arguendo, that those inferences could not be drawn fromher testimony, we note that the witness further testified that she has conducted "just less than fivehundred" autopsies. An "expert should be possessed of the requisite skill, training, education,knowledge or experience from which it can be assumed that the information imparted orthe opinion rendered is reliable" (Matott v Ward, 48 NY2d 455, 459 [1979] [emphasisadded]; see People v McKinley, 72 AD2d 470, 476 [1980]). Indeed, "[p]racticalexperience may properly substitute for academic training in determining whether an individualhas acquired the training necessary to be qualified as an expert" (People v Owens, 70 AD3d 1469,1470 [2010], lv denied 14 NY3d 890 [2010] [internal quotation marks omitted]; see People v Hamilton, 96 AD3d1518, 1519 [2012]; see also People v Burt, 270 AD2d 516, 518 [2000]). Thus, thefact that the witness conducted almost 500 autopsies qualified her to give expert medical opinionas to the cause of the victim's death (seePeople v Morehouse, 5 AD3d 925, 928-929 [2004], lv denied 3 NY3d 644[2004]). Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.