| People v Baugh |
| 2012 NY Slip Op 08825 [101 AD3d 1359] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dante R.Baugh, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Jason W. White of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered December 17, 2010, upon a verdict convicting defendant of the crime of assault in thesecond degree.
During the evening of May 14, 2009, defendant and three friends went to a "pub crawl" at alocal bar located in the City of Binghamton, Broome County and, while there, became involvedin a verbal altercation with a group of individuals, including the victim and his cousin, KevinCastillo. After words were exchanged, defendant and his friends followed the victim and othersto a nearby parking lot where a fight erupted. During the melee that ensued, defendant was seenby witnesses kicking the victim in the head while he lay on the ground apparently unconscious.One of the witnesses, police officer Carl Edwards, subdued defendant and placed him underarrest. Defendant was later brought to police headquarters where, after being given hisMiranda warnings, he made a series of statements allegedly admitting that he "kicked theguy" and "didn't care if he was hurt."
Defendant was subsequently charged by indictment with assault in the second degree withrespect to the victim and assault in the third degree with respect to Castillo. He filed an omnibusmotion seeking, among other things, inspection of the grand jury minutes, suppression of thestatements he made to the police and dismissal of the indictment (see CPL 210.30,210.20). County Court dismissed the assault charge as it pertained to Castillo, but after a hearing[*2]denied defendant's motion to suppress the statements he madeto the police after his arrest. After a trial, defendant was found guilty of assault in the seconddegree and was subsequently sentenced, as a second felony offender, to seven years in prison, tobe followed by five years of postrelease supervision. Defendant now appeals.
Defendant initially argues that because he was intoxicated and exhausted from a lack ofsleep, he could not have effectively waived his Miranda rights at police headquarters and,therefore, the statements attributed to him by the police should have been suppressed.Intoxication will only serve to invalidate the waiver of one's constitutional rights "when thedegree of inebriation has risen to the level of mania or to the level where the defendant is unableto comprehend the meaning of his or her words" (People v Scott, 47 AD3d 1016, 1020 [2008], lv denied 10NY3d 870 [2008] [internal quotation marks and citation omitted]; see People vSchompert, 19 NY2d 300, 305 [1967], cert denied 389 US 874 [1967]; People v Williams, 40 AD3d1364, 1365 [2007], lv denied 9 NY3d 927 [2007]; see also People v Alke, 90 AD3d943, 943 [2011], lv denied 19 NY3d 994 [2012]; People v Thornton, 87 AD3d 663, 664 [2011], lv denied 18NY3d 862 [2011]). Here, defendant testified at the suppression hearing that he consumed asubstantial amount of alcohol prior to the incident and was "still intoxicated and tired" whenquestioned by the police. However, he acknowledged that while he was at police headquarters, hewas read his Miranda warnings, understood them, and agreed to waive them beforemaking any statements regarding the incident. This evidence, coupled with testimony of policeofficers that defendant was alert and coherent when questioned, established beyond a reasonabledoubt that he voluntarily and knowingly waived his constitutional rights and then, of his ownvolition, made statements regarding the incident to the police.
Defendant also claims that his conviction is not supported by legally sufficient evidence andis against the weight of the credible evidence introduced at trial. Specifically, he argues that thePeople failed to present competent evidence that he, as opposed to other individuals involved inthe incident, caused the serious injuries sustained by the victim in this assault. Defendant alsoargues that the evidence was legally insufficient to establish that he acted in concert with thoseindividuals when the victim was seriously injured and, therefore, could not be held criminallyliable as an accessory for this felony assault.
Assault in the second degree requires that evidence be presented that "[w]ith the intent tocause serious physical injury to another person, [a defendant] cause[d] such injury to suchperson" (Penal Law § 120.05 [1]). Serious physical injury is "physical injury which createsa substantial risk of death, or which causes death or serious and protracted disfigurement,protracted impairment of health or protracted loss or impairment of the function of any bodilyorgan" (Penal Law § 10.00 [10]; see People v Brown, 100 AD3d 1035, 1036 [2012]). Here, theevidence established that defendant was guilty of assaulting the victim either as a principal or asan accessory who acted in concert with others when this attack on the victim was perpetrated(see People v Mateo, 2 NY3d 383, 408 [2004], cert denied 542 US 946 [2004];People v Rivera, 84 NY2d 766, 768 [1995]; People v Wheatley, 55 AD3d 947, 949 [2008], lv denied 11NY3d 931 [2009]).
Defendant's guilt as a principal was based on statements attributed to him by the police aswell as testimony given by numerous eyewitnesses who stated that defendant was intimatelyinvolved in the melee and kicked the victim in the head during the fight that ensued while thevictim was on the ground and unable to defend himself. Medical evidence introduced at trial[*3]confirmed that defendant's actions as described by thesewitnesses could cause the serious injuries that the victim sustained in this assault.
To establish defendant's guilt as an accessory, evidence must be presented that when thevictim was seriously injured, defendant aided and abetted in the attack and did so with the mentalculpability required for the commission of a felony assault (see Penal Law §20.00). Defendant contends that it has not been proved that he, as opposed to others involved inthe fight, delivered the blow that caused the victim's serious head injury. However, even if thiswere so, his conviction for felony assault would be supported by legally sufficient evidence if, atthe time of the assault, he intended the victim to be seriously injured and "solicit[ed], request[ed],command[ed], importune[d], or intentionally aid[ed]" other individuals when they attacked thevictim (Penal Law § 20.00; seePeople v Smith, 89 AD3d 1126, 1129 [2011], lv denied 18 NY3d 962 [2012];People v Weiner, 226 AD2d 757, 758 [1996]). In that regard, we note that before thevictim was injured, a verbal confrontation occurred outside the bar involving defendant and hisfriends and other individuals, including the victim and Castillo. When a fight later erupted,witnesses identified defendant as being part of a group of individuals who were kicking thevictim while he lay on the ground and was seriously injured. That evidence established thatdefendant, at that moment, was part of the group that attacked the victim and shared a"community of purpose" with them when the victim was seriously injured (People v Francis, 83 AD3d 1119,1122 [2011], lv denied 17 NY3d 806 [2011]). As such, defendant, at the very minimum,was an accessory and, therefore, criminally liable for felony assault (People v Ficarrota,91 NY2d 244, 248 [1997]; see People vNicholson, 97 AD3d 968, 969 [2012], lv denied 19 NY3d 1104 [2012]; see also People v Gangar, 79 AD3d1262, 1263 [2010], lv denied 16 NY3d 831 [2011]). Moreover, assuming a differentverdict would not have been unreasonable, and viewing the evidence in a neutral light anddeferring to the jury's credibility determinations, this verdict was not against the weight of thecredible evidence introduced at trial (see People v Bleakley, 69 NY2d 490, 495 [1987];People v Smith, 89 AD3d at 1131).
Finally, we are unpersuaded that defendant's sentence was harsh or excessive. This was, byany measure, a brutal assault and the victim sustained injuries that will undoubtedly have lastingconsequences. We are unaware of any extraordinary or mitigating circumstances that wouldwarrant a reduction of the sentence imposed by County Court (see People v Dudley, 100 AD3d1103, 1104 [2012]; People v Nicholson, 97 AD3d at 970; People v Ingram, 95 AD3d 1376,1378-1379 [2012], lv denied 19 NY3d 974 [2012]).
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.