| People v Haynes |
| 2013 NY Slip Op 01644 [104 AD3d 1142] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vHerbert H. Haynes, Jr., Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedMarch 30, 2010. The judgment convicted defendant, upon a jury verdict, of burglary inthe first degree (three counts), assault in the second degree (two counts), harassment inthe second degree (two counts) and criminal mischief in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reducing the conviction of burglary in the first degree (Penal Law §140.30 [2]) under count two of the indictment to burglary in the second degree (§140.25 [2]), reducing the conviction of assault in the second degree (§ 120.05 [2])under count four of the indictment to attempted assault in the second degree(§§ 110.00, 120.05 [2]), and vacating the sentences imposed on thosecounts, and as modified the judgment is affirmed and the matter is remitted to OntarioCounty Court for sentencing on the conviction of burglary in the second degree andattempted assault in the second degree.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, burglary in the first degree (Penal Law § 140.30 [2], [3]) andassault in the second degree (§ 120.05 [2]). We agree with defendant that theevidence is legally insufficient to support his conviction of burglary in the first degree ascharged in count two of the indictment and assault in the second degree as charged incount four of the indictment because there is insufficient evidence that the victimsustained a physical injury (see §§ 120.05 [2]; 140.30 [2]), i.e.,"impairment of physical condition or substantial pain" (§ 10.00 [9]). Although "'substantial pain' cannot be defined precisely, . . . it can be said that it ismore than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]). " '[P]ettyslaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives'constitute only harassment and not assault, because they do not inflict physical injury"(id. at 448; see Matter of Philip A., 49 NY2d 198, 200 [1980]). Factorsrelevant to an assessment of substantial pain include the nature of the injury, viewedobjectively, the victim's subjective description of the injury and his or her pain, whetherthe victim sought medical treatment, and the motive of the offender (seeChiddick, 8 NY3d at 447-448; People v Spratley, 96 AD3d 1420, 1421 [2012]). "Motiveis relevant because an offender more interested in displaying hostility than in inflictingpain will often not inflict much of it" (Chiddick, 8 NY3d at 448).[*2]
Here, the victim and other witnesses testified thatone of defendant's companions struck the victim in the arm, neck and head with abaseball bat. The victim testified that he sustained a bruise on his arm, which did "[n]ot[last] at all." No bruise is apparent in the photograph of the victim's arm taken shortlyafter the incident. The victim also testified that his neck was bruised in the attack,although that bruise is likewise not visible in the photograph contained in the record.Finally, the victim identified a photograph of his head and testified that he sustained "alump, but you can't really see it." After the incident, the victim went to the hospital withhis brother and a friend who were also attacked. According to the victim, medicalpersonnel "looked at [him], but it wasn't serious." Although we agree with the Peoplethat an attack with a baseball bat is "an experience that would normally be expected tobring with it more than a little pain" (id. at 447; see People v Henderson, 77AD3d 1311, 1311 [2010], lv denied 17 NY3d 953 [2011]), here the victimtestified that his injuries hurt only "[a] little bit," and that the pain lasted "a couple ofdays, no longer than a week." Further, it is undisputed that the victim was not the maintarget of the attack, but rather was an unfortunate bystander (see generallyChiddick, 8 NY3d at 447-448). We thus conclude that the evidence adduced at trialis legally insufficient to establish that the victim sustained a physical injury, i.e., physicalimpairment or substantial pain (see Matter of Shawn D.R.-S., 94 AD3d 1541, 1541-1542[2012]; People v Lunetta,38 AD3d 1303, 1304-1305 [2007], lv denied 8 NY3d 987 [2007];People v Patterson, 192 AD2d 1083, 1083 [1993]; cf. Matter of Nico S.C., 70AD3d 1474, 1475 [2010]; People v Smith, 45 AD3d 1483, 1483 [2007], lvdenied 10 NY3d 771 [2008]; People v Wooden, 275 AD2d 935, 936 [2000],lv denied 96 NY2d 740 [2001]). We further conclude, however, that the evidenceis legally sufficient to support a conviction of the lesser included offenses of burglary inthe second degree (Penal Law § 140.25 [2]) and attempted assault in the seconddegree (§§ 110.00, 120.05 [2]), and we therefore modify the judgmentaccordingly. Contrary to the further contention of defendant, viewing the evidence inlight of the elements of the remaining crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict with respect to those crimes isnot against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
Defendant further contends that he was deprived of a fair trial by prosecutorialmisconduct during voir dire and throughout the trial. "By failing to object to most of thestatements by the prosecutor that are now alleged to constitute misconduct, defendantfailed to preserve for our review his contentions with respect to those statements"(People v Hess, 234 AD2d 925, 925 [1996], lv denied 90 NY2d 1011[1997]; see CPL 470.05 [2]; People v Justice, 99 AD3d 1213, 1216 [2012]; People v Nappi, 83 AD3d1592, 1594 [2011], lv denied 17 NY3d 820 [2011]). In any event, weconclude that, although certain comments made by the prosecutor were improper, thosecomments "were 'not so egregious as to deprive defendant of his right to a fair trial,'when viewed in the totality of the circumstances of this case" (People v Martina, 48 AD3d1271, 1273 [2008], lv denied 10 NY3d 961 [2008]; see Justice, 99AD3d at 1216). We further conclude that defendant was not denied effective assistanceof counsel based on the failure of defense counsel to object to the prosecutor's impropercomments on summation (seePeople v Lopez, 96 AD3d 1621, 1623 [2012], lv denied 19 NY3d 998[2012]; People v Lyon, 77AD3d 1338, 1339 [2010], lv denied 15 NY3d 954 [2010]).
Contrary to defendant's contention, the sentence is not unduly harsh or severe. Asdefendant correctly contends, however, the certificate of conviction mistakenly recitesthat he was sentenced to a five-year period of postrelease supervision on each convictionof assault in the second degree when, in fact, the court imposed no periods of postreleasesupervision. The certificate of conviction must therefore be amended to reflect thatdefendant was not sentenced to any periods of postrelease supervision on the two assaultconvictions (see generallyPeople v Saxton, 32 AD3d 1286, 1286-1287 [2006]). Present—Scudder,P.J., Peradotto, Carni, Whalen and Martoche, JJ.