| People v Peterson |
| 2014 NY Slip Op 04274 [118 AD3d 1151] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTerrance Peterson, Also Known as Terrence Peterson,Appellant. |
Brent R. Stack, Valatie, for appellant.
D. Holley Carnright, District Attorney, Kingston (Alison Russomano of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered November 16, 2012, upon a verdict convicting defendant of the crimes ofburglary in the second degree, strangulation in the second degree, assault in the thirddegree, aggravated criminal contempt and criminal contempt in the first degree (twocounts).
Defendant and the victim had previously been involved in an intimate relationshipoccasioned by incidents of physical violence. On November 29, 2011, defendant arrivedat the apartment of the victim, who had obtained an order of protection against him, andproceeded to choke her and strike her repeatedly in the face and body with his fist. Hewas thereafter charged with various crimes stemming from the attack and, following ajury trial, was convicted of burglary in the second degree, strangulation in the seconddegree, assault in the third degree, aggravated criminal contempt and two counts ofcriminal contempt in the first degree. County Court sentenced him to an aggregate prisonterm of 15 years to be followed by five years of postrelease supervision. Defendantappeals.
Defendant first challenges the legal sufficiency and weight of the evidencesupporting his conviction for burglary in the second degree, specifically arguing that thePeople failed to establish that he intended to commit a crime upon entering the victim'shome. "In burglary cases, the defendant's intent to commit a crime within the premisesmay be inferred beyond a [*2]reasonable doubt from thecircumstances of the entry" (People v Beaty, 89 AD3d 1414, 1416 [2011], affd22 NY3d 918 [2013] [internal quotation marks and citation omitted]; see People v Perry, 95 AD3d1444, 1445 [2012], lv denied 19 NY3d 1000 [2012]; People v Rodriguez, 68 AD3d1351, 1352 [2009], lv denied 14 NY3d 804 [2010]).
The trial evidence established that, despite the order of protection then in effect,defendant and the victim shared Thanksgiving dinner together five days before thisincident and spent at least one night together at the victim's residence during that week.Upon returning home from work on the evening of November 29, 2011, the victimreceived a message from defendant indicating that he would be coming over to retrievecertain belongings he had left there. She then gathered the items that defendant had left,put them on the counter and floor of her kitchen and went out into the foyer of theapartment building to wait for defendant. According to the victim, defendant camethrough the front door of her apartment building minutes later with a "red angry face"and, with "force and quickness," put his hands around her throat, told her to "get in thatF'ing bedroom" and pushed her into her apartment. He punched her in theface—causing her to see "stars"—and when she "came to" she was on thefireplace with defendant pulling her toward the bedroom. After trying unsuccessfully topull the victim up by her hair, defendant then bent down and delivered a number ofpunches to her stomach. As defendant left the room to get her ice, the victim managed torun out into the street and flag down a motorist, who took her to a hospital fortreatment.
Defendant did not deny assaulting the victim, but claimed that she had initiatedcontact with him on that day and invited him over for dinner. He stated that, uponarriving at the victim's residence, she greeted him on the porch and they walked insidethe building and into her apartment together. Defendant testified that the victim thenbegan talking about "set[ting] some rules," which ignited an argument. According todefendant, the victim slapped and scratched him, to which he admittedly responded bypunching her in the face "five or six times"—"in the jaw, both her eyes [and] inthe head."
The victim's description of the violent and unauthorized manner of defendant's entry,his actions once inside the apartment and the evidence of his prior abusive conducttowards her enabled the jury to reasonably infer that he intended to commit a crime uponentering the victim's home (seePeople v Bibbes, 98 AD3d 1267, 1268-1269 [2012], lv denied 20 NY3d931 [2012]; People vCajigas, 82 AD3d 544, 545 [2011], affd 19 NY3d 697 [2012]; People v Massey, 45 AD3d1044, 1046 [2007], lv denied 9 NY3d 1036 [2008]; see also People v Lewis, 5NY3d 546, 552 [2005]). While defendant points to various inconsistencies in thevictim's testimony, these were fully explored on cross-examination and presented for thejury's consideration, and we find nothing inherently unbelievable or incredible about heraccount of the incident (seePeople v McCray, 102 AD3d 1000, 1003-1004 [2013], affd 23 NY3d193 [2014]; People v Mateo, 101 AD3d 1458, 1459 [2012], lvdenied 21 NY3d 913 [2013]). Further, although a different verdict would not havebeen unreasonable in light of defendant's testimony, after considering the evidence in aneutral light and according due deference to the jury's credibility determinations, weconclude that the verdict on the burglary count is not against the weight of the evidence(see People v Danielson, 9NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]).
We reach a similar conclusion with respect to defendant's convictions forstrangulation in the second degree and aggravated criminal contempt. To convictdefendant of strangulation in the second degree, the People were required to prove thathe applied pressure to the throat or [*3]neck of the victimwith the intent to impede her normal breathing or circulation of blood, and therebycaused her to suffer stupor or loss of consciousness for any period of time, or any otherphysical injury or impairment (see Penal Law §§ 121.11,121.12; People v Carte, 113AD3d 191, 193 [2013]). To prove that defendant committed the crime of aggravatedcriminal contempt, the People were required to establish that, in violation of the order ofprotection in favor of the victim, defendant intentionally or recklessly caused physicalinjury to her (see Penal Law § 215.52 [1]).
According to the victim, after defendant came through the front door of her building,he immediately put his hands around her throat, applied pressure, and continued to do soas he pushed her into her apartment. The victim explained that, when defendant's handswere around her neck, she felt "out of sorts" and at a loss for air, and last recalled seeingstars before she "came to" and found herself on the floor. Upon her arrival at a hospitalemergency room, a nurse observed "linear markings" on the victim's neck and noted thisfinding in her medical records, along with the victim's statement that she "was strangled."The evidence established that the victim suffered from multiple abrasions andcontusions, and her face was so swollen that she could not open her eyes. The nursetestified that the victim reported a loss of consciousness and had hemorrhaging in one ofher eyes, which is a sign of strangulation. A friend of the victim who was present at thehospital emergency room shortly after the attack described the victim's face as "verydisfigured" and testified that her throat was bluish and swollen and appeared to havefingerprint marks on it. Such observations were confirmed by photographs taken at thehospital by the investigating officer. Both this officer and the victim's friend stated thatthe victim had difficulty talking while at the hospital, and the victim testified that herthroat felt raspy and sore the day after the assault and that she was expelling blood andphlegm for over seven days. Ultimately diagnosed with multiple contusions and a chestinjury due to blunt trauma, the victim was prescribed anti-inflammatory and painmedication.
Given this evidence, there is "a valid line of reasoning and permissible inferencesfrom which a rational jury could have found the elements of the crime[s] proved beyonda reasonable doubt" (People v Danielson, 9 NY3d at 349 [internal quotationmarks and citations omitted]; accord People v Brown, 17 NY3d 863, 865 [2011]).Defendant's intent to interfere with the victim's breathing can be inferred from hisconduct in grasping the victim's neck and thereafter maintaining his grip around herthroat as he pushed the victim into the apartment (see People v Carte, 113 AD3dat 195; see also Matter of JesseZ., 116 AD3d 1105, 1106 [2014]; see generally People v Johnson, 107 AD3d 1161, 1163[2013], lv denied 21 NY3d 1075 [2013]). Further, considering the factorsrelevant to determining whether physical injury has been established (see PenalLaw § 10.00 [9]; People v Chiddick, 8 NY3d 445, 447 [2007]; People vCarte, 113 AD3d at 193-194), we find legally sufficient evidence for the jury toconclude that the victim suffered more than "slight or trivial pain" as a result of suchconduct (People v Boyd, 97AD3d 898, 899 [2012] [internal quotation marks and citation omitted], lvdenied 20 NY3d 1009 [2013]; see People v Carte, 113 AD3d at 193-194; People v Jones, 79 AD3d1244, 1245-1246 [2010], lv denied 16 NY3d 832 [2011]; People v Stearns, 72 AD3d1214, 1216-1217 [2010], lv denied 15 NY3d 778 [2010]). While defendantdenied touching the victim's neck during the assault, we defer to the jury's resolution ofthis credibility issue. Upon the exercise of our factual review power, we likewiseconclude that the guilty verdict on these counts is in accord with the weight of theevidence.
We are similarly unpersuaded by defendant's assertion that County Court erred in[*4]refusing to charge the jury with assault in the thirddegree as a lesser included offense of strangulation in the second degree. Comparing thestatutory definitions of the two crimes in the abstract (see People v Davis, 14 NY3d 20, 23 [2009]; People vGlover, 57 NY2d 61, 63-64 [1982]), it is theoretically possible to commit seconddegree strangulation without also, by the same conduct, committing third degree assault.As relevant here, a person commits the crime of assault in the third degree when, with theintent to cause physical injury to another, he or she causes such physical injury(see Penal Law § 120.00 [1]). To commit strangulation in thesecond degree, however, there need not be an intent to cause physical injury, nor anyphysical injury caused (see Penal Law §§ 121.11, 121.12). Aperson can intend to impede another's normal breathing only as a method of assertingpower and control over that person, without intending to cause physical injury(see William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY,Book 39, Penal Law § 121.11, 2014 Pocket Part at 41-42). Furthermore,application of pressure to another's neck could cause stupor or loss of consciousness, butnot physical injury. Thus, assault in the third degree under Penal Law§ 120.00 (1) is not a lesser included offense of strangulation in the seconddegree.
Defendant correctly asserts that the prosecutor's question as to whether he hadpreviously been convicted of criminal contempt in the second degree was a directviolation of County Court's Sandoval ruling. Such ruling limited the People'sinquiry to whether defendant "committed a crime and violated an order of [t]he [c]ourt"on a certain date, without speaking of the facts of the crime or the nature of the order.Defendant was not, however, deprived of a fair trial as a result of the violation, as anyprejudice that might have arisen was alleviated when the court struck the question andanswer from the record and delivered prompt curative instructions to the jury (seePeople v Santiago, 52 NY2d 865, 866 [1981]; People v Thompson, 67 AD3d 519, 519 [2009], lvdenied 14 NY3d 806 [2010]; People v Robles, 28 AD3d 233, 233 [2006], lvdenied 7 NY3d 817 [2006]; compare People v Wright, 260 AD2d 935, 937[1999]). When the prosecutor then properly proceeded to ask defendant whether, inJanuary 2012, he had "violated an order of the [c]ourt and [was] subsequentlyconvicted," defendant responded that he did not remember and repeatedly asked, "Whatcrime are you talking about?" As his responses challenged the People to specificallyidentify his conviction, defendant opened the door to further inquiry into such conviction(see People v Fardan, 82 NY2d 638, 646 [1993]; People v Alicea, 276AD2d 915, 916 [2000], lv denied 96 NY2d 780 [2001]; People v Marsh,248 AD2d 743, 744-745 [1998], lv denied 92 NY2d 856 [1998]; comparePeople v Moore, 92 NY2d 823, 824-825 [1998]). Accordingly, County Court did noterr in modifying its Sandoval ruling so as to allow such inquiry.
Finally, considering defendant's disregard of the order of protection, the violentnature of the crimes he perpetrated upon the victim and his extensive criminalhistory—which includes 17 convictions spanning four decades, eight separatejurisdictions and three different states—we find that County Court acted wellwithin its discretion in imposing concurrent maximum sentences on the top two counts,and we discern no extraordinary circumstances warranting a modification thereof (see People v Lawing, 110AD3d 1354, 1356 [2013], lv denied 22 NY3d 1200 [2014]; People v Phelan, 82 AD3d1279, 1283 [2011], lv denied 17 NY3d 799 [2011]; People v Clark, 65 AD3d755, 759 [2009], lv denied 13 NY3d 906 [2009]). Contrary to defendant'scontention, County Court's comments at sentencing were not indicative of a "personalhatred" of him, but rather "merely reflect the fact that the court was taking intoconsideration the nature of the crime[s], a legitimate factor in determining an appropriatesentence" (People v Anderson, 287 AD2d 574, 574 [2001], lv denied 97NY2d 701 [2002] [internal quotation marks and citation omitted]; see People v Vaughan, 48AD3d 1069, 1071[*5][2008], lv denied 10NY3d 845 [2008], cert denied 555 US 910 [2008]; see also People v Pimentel, 108AD3d 861, 863-864 [2013], lv denied 21 NY3d 1076 [2013]; People v Cintron, 12 AD3d455, 456 [2004], lv denied 4 NY3d 742 [2004]). We must, however, vacatethe sentence reflected in the sentencing minutes for obstructing breathing and bloodcirculation causing physical injury, as defendant was neither tried for nor convicted ofthat offense (see People vCampbell, 37 AD3d 486, 486 [2007], lv denied 8 NY3d 944 [2007];People v Daniels, 237 AD2d 529, 530 [1997], lv denied 90 NY2d 1010[1997]).
Defendant's remaining contention—that a missing witness charge should havebeen issued as to the victim's neighbor—is unpreserved (see CPL 470.05[2]; People v Williams, 62 NY2d 765, 767 [1984]; People v Jones, 79AD3d at 1247).
Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by vacating the sentence imposed for the crime of obstructing breathing andblood circulation causing physical injury, and, as so modified, affirmed.