| People v Davis |
| 2013 NY Slip Op 02295 [105 AD3d 1095] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RamalDavis, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered January 13, 2012, upon a verdict convicting defendant of thecrimes of promoting prison contraband in the first degree and attempted assault in thesecond degree.
While incarcerated at Elmira Correctional Facility in Chemung County, defendantand another inmate (hereinafter the victim) were observed in fighting stances in thefacility gym. The victim had a cut from his mouth to his ear. After separating the twoinmates, a correction officer conducted a pat frisk of defendant. During the frisk, anothercorrection officer saw something fall from defendant's hand and retrieved the item,which turned out to be a scalpel blade with electrical tape wrapped around the end.Defendant was charged with and found guilty of promoting prison contraband in the firstdegree and attempted assault in the second degree. County Court sentenced him, as asecond felony offender, to an aggregate prison term of 3 to 6 years. Defendant appeals.
Defendant's conviction was not against the weight of the evidence. Where a differentverdict would not have been unreasonable, "this Court must weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that maybe drawn from the testimony while viewing the evidence in a neutral light and givingdeference to the jury's credibility assessments" (People v Johnson, 91 AD3d 1194, 1196 [2012], lvdenied 18 NY3d 995[*2][2012] [internal quotationmarks and citation omitted]; see People v Bleakley, 69 NY2d 490, 495 [1987]).As to the promoting prison contraband charge, defendant does not dispute that he wasconfined in a facility or that the scalpel blade constitutes dangerous contraband; he onlychallenges the proof that he actually possessed the blade (see Penal Law §205.25 [2]). As to the attempted assault charge, the People were required to prove that,"[w]ith intent to cause physical injury to another person," defendant engaged in conductthat would tend to bring about "such injury to such person . . . by means ofa deadly weapon or a dangerous instrument" (Penal Law § 120.05 [2]; seePenal Law § 110.00). It is undisputed that the victim's face was cut, so the onlyelements at issue are whether defendant was the perpetrator and whether he intended tocause physical injury.
One correction officer testified that he observed defendant and the victim square offand throw punches at each other. After breaking them up, he put defendant against thewall and began a pat frisk. He did not see defendant drop anything, but did see a secondcorrection officer place his foot on something, drag it back and secure it. The secondofficer testified that he came into the gym after the fight was over and while defendantwas being frisked. That officer testified that he saw defendant drop something from hishand. To secure that item, the officer placed his foot on it and dragged it backwards ashort distance so he could pick it up safely away from defendant. When he picked theitem up, he discovered that it was a scalpel blade with black electrical tape wrapped tocreate a makeshift handle. This weapon was received into evidence. A third correctionofficer testified that he did not see the fight or see defendant drop anything, but he sawthe second officer pick something up off the floor. That officer further testified that all ofthe other inmates in the gym were pat frisked after the fight, but no other weapons wererecovered.
The victim testified that he was cut from behind but did not see who cut him. Whenhe turned around, he saw four inmates, two closer to him than the others. Defendant wasone of the closer inmates. When defendant started walking away, the other close inmateindicated to the victim that defendant was the perpetrator, so the victim puncheddefendant.
A facility nurse testified that the victim's injury was consistent with a cut from arazor or sharp blade. The victim's testimony and medical records reveal that he received24 stitches to repair the wound. Finally, defendant testified that he was in the gym andsquared off with the victim, but he did not know the victim, did not cut him, did notpossess or drop a blade and did not even throw a punch at the victim, although the victimpunched him. The jury was free to disbelieve portions of defendant's testimony, acceptthe direct evidence proving that defendant possessed the blade and reasonably infer thatdefendant was the only person who could have cut the victim with that blade and that hedid so with the intention to inflict physical injury. Considering the evidence in a neutrallight and deferring to the jury's credibility determinations, the verdict was not against theweight of the evidence (seePeople v Carter, 90 AD3d 1159, 1160 [2011]; People v Watkins, 49 AD3d908, 908-909 [2008], lv denied 10 NY3d 965 [2008]; People v Camerena, 42 AD3d814, 815 [2007], lv denied 9 NY3d 921 [2007]).
Defendant did not object during trial to the prosecutor's leading questions of whichhe now complains, rendering his argument unpreserved for our review (see People v Jordan, 99 AD3d1109, 1110 [2012]). Similarly, defendant's argument concerning County Court'scircumstantial evidence charge is unpreserved, as he did not request a different charge orobject to the charge that was given (see People v Cushner, 46 AD3d 1121, 1124 [2007], lvdenied 10 NY3d 809 [2008]; People v Edwards, 39 AD3d 1078, 1081 [2007]).[*3]
Defendant received the effective assistance ofcounsel. Defendant inaccurately asserts that counsel rarely objected during trial. In fact,counsel objected to numerous questions. Many of the objections were sustained,including several resulting in the prosecutor's inability to have witnesses identifydefendant at trial. We will not second guess counsel's decision to refrain from objectingto a few leading questions. As County Court's circumstantial evidence charge on theattempted assault count—taken directly from the Pattern JuryInstructions—was appropriate (see People v Beckingham, 57 AD3d 1098, 1100 [2008],lv denied 13 NY3d 742 [2009]; CJI2d[NY] Evidence-Circumstantial Evidence;compare People v Sanchez, 61 NY2d 1022, 1024 [1984]), counsel cannot bedeemed ineffective for failing to object to the charge (see People v Fisher, 89 AD3d 1135, 1139 [2011], lvdenied 18 NY3d 883 [2012]). Counsel made proper motions, gave coherent openingand closing statements, pursued a reasonable strategy, asserted a number of objectionsand effectively cross-examined the People's witnesses. Based on the record as a whole,counsel provided defendant with meaningful representation (see id.).
Mercure, J.P., Rose and Garry, JJ., concur. Ordered that the judgment is affirmed.