| People v Brabham |
| 2015 NY Slip Op 01833 [126 AD3d 1040] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKenneth M. Brabham, Also Known as Skeet, Appellant. |
John R. Trice, Elmira, for appellant, and appellant pro se.
Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered September 12, 2012, upon a verdict convicting defendant of the crimes ofburglary in the first degree, attempted assault in the first degree and assault in the seconddegree.
Defendant and several other men allegedly entered the victim's apartment withoutpermission and assaulted him. Defendant was indicted for burglary in the first degree,attempted assault in the first degree and assault in the second degree. He was convictedas charged by a jury and sentenced to an aggregate prison term of 15 years followed byfive years of postrelease supervision. Defendant appeals.
Defendant contends that his convictions are not supported by legally sufficientevidence and are against the weight of the evidence, asserting that the witness testimonyagainst him was not credible. Defendant moved to dismiss the charges on this ground atthe close of the People's case, but he did not renew the motion following the close of allproof. Although his legal sufficiency claim is therefore unpreserved (see People v Lane, 7 NY3d888, 889 [2006]; People vSantiago, 118 AD3d 1163, 1164 [2014], lv denied 24 NY3d 964[2014]), defendant's claim that the verdict was against the weight of the evidencerequires this Court to examine the sufficiency of the evidence of each element of thecrimes (see People v Rowe,105 AD3d 1088, 1090 n 2 [2013], lv denied 21 NY3d 1019 [2013]; People v Mitchell, 94 AD3d1252, 1253 n [2012], lv denied 19 NY3d 964 [2012]).
[*2] The victim testified that he and defendant's paramourwere in his apartment when several men burst through the door, including defendant,who was holding a gun. Defendant and the other men beat the victim with variousobjects, including a wooden rod or staff, an end table, a propane tank and a hard objectthat the victim believed to be the butt of defendant's gun. The victim testified that hecrouched face down on his bed during most of the assault, trying to protect himself andhis dog, but looked up once to see defendant—whom he had previously metseveral times—hitting him in the head with the end table. Another assailant hithim repeatedly with the rod, fracturing one of his fingers. The rod and the end table, bothof which were broken during the attack, were admitted into evidence at trial. The victimtestified that the assault continued for about 20 minutes until one of the men said, "[H]e'sleaking good, let's get out of here," at which point the men left the apartment, taking theparamour with them. When the victim left the apartment in search of assistance, he sawfour men "dragging" the paramour away. He later identified defendant from aphotograph, but could not identify the other assailants.
In addition to the broken finger, the victim sustained multiple contusions and alaceration on his head, additional contusions on his face, back, arms and hands, shoulderinjuries and a large swollen bruise on his arm. He received medical treatment thatincluded stitches for the head wound, a sling for the injured arm and physical therapy forthe shoulder. He did not regain full use of his arm for several months and, at the time oftrial, was still unable to move the broken finger.
The victim and the paramour both testified that defendant had previously warnedthem that the paramour was not allowed to enter the victim's apartment; according to thevictim, defendant said during the assault, "[I] told you not to let [the paramour] come inhere." The paramour was reluctant to testify because of her relationship with defendant,and did so only after she was incarcerated pursuant to a warrant for her arrest as amaterial and necessary witness. She confirmed the victim's testimony in part, stating thatshe was present when defendant and three other men entered the apartment withoutpermission. She testified that defendant had a gun, one of the other men had a "stick" andthe other three men beat the victim, but she stated that defendant removed her from theapartment when the assault began and that she did not see him strike the victim.
Defendant challenges the credibility of the victim and the paramour, pointing to suchinconsistencies in their statements as the conflict between the victim's claim thatdefendant participated in the assault and the paramour's claim that he did not do so.Defendant argues that the victim was unworthy of belief because of his extensivecriminal record and longstanding history of drug abuse, and he challenges the credibilityof the paramour based upon her history of prostitution and drug abuse, prior convictionsfor these activities and testimony that she had previously traded sex for drugs with thevictim. As defendant contends, the victim's initial statements to police did not include hislater claims that defendant had a gun and that the victim was struck with a propane tank.Moreover, the victim acknowledged that he and the paramour had smoked crack togetherin his apartment on the night before the assault, that he continued to abuse drugsthereafter, and that he had last smoked crack only a few days before the trial. However,he testified that he was not under the influence of drugs when the assault occurred nor attrial, and a police officer testified that the victim was able to communicate clearly afterthe assault.
There were other inconsistencies in the victim's testimony, such as his testimony atone point that three men entered the apartment and at another point that the number wasbetween two and four. However, we reject defendant's argument that theseissues—all of which were thoroughly explored oncross-examination—rendered the testimony unworthy of belief. The [*3]testimony was not contradicted by any other compellingevidence and cannot be considered incredible as a matter of law (see People v Cridelle, 112AD3d 1141, 1143 [2013]; People v Moyer, 75 AD3d 1004, 1006 [2010]). Instead, theconflicts and inconsistencies in the testimony created "classic credibility issue[s] for thejury to resolve" (People vMitchell, 57 AD3d 1308, 1309 [2008] [internal quotation marks and citationomitted]; accord People vMcCray, 102 AD3d 1000, 1004 [2013], affd 23 NY2d 193 [2014]).Viewing the evidence in a neutral light and according deference to the jury's credibilityassessments, the verdict is supported by the weight of the evidence as to all of thecharged crimes (see People vMateo, 101 AD3d 1458, 1459-1460 [2012], lv denied 21 NY3d 913[2013]; People v Dove, 89AD3d 1153, 1153-1154 [2011], lv denied 18 NY3d 957 [2012]; People vElliot, 299 AD2d 731, 733 [2002]).
Defendant's representation at trial did not constitute the ineffective assistance ofcounsel. As he contends, his counsel's arguments in the trial motion to dismiss and insummation that the victim did not sustain serious physical injury were misguided, as nosuch showing is required to prove attempted assault in the first degree (see People v Daniels, 97 AD3d845, 847 [2012], lv denied 20 NY3d 931 [2012]; People v Gray, 30 AD3d771, 773 [2006], lv denied 7 NY3d 848 [2006]). Moreover, defense counselwas unsuccessful in using a defense witness to impeach defendant's testimony as to thenumber of assailants because he had not established the necessary foundation, althoughhe did impeach the victim's testimony through other means (compare People v Rodriguez,48 AD3d 312, 312 [2008], lv denied 10 NY3d 939 [2008]).
"The Constitution guarantees a defendant a fair trial, not a perfect one," and isolatederrors do not ordinarily constitute ineffective assistance unless they are so grievous as toamount to a deprivation of the constitutional right to a fair trial (People v Henry,95 NY2d 563, 565-566 [2000] [citation omitted]; see People v Shuaib, 111 AD3d 1055, 1057 [2013], lvdenied 24 NY3d 1046 [2014]). The cited errors were not so egregious as to rise tothat level, and defendant's remaining challenges to his counsel's performance do notestablish ineffective assistance. Defendant claims that his counsel should have objectedto certain allegedly improper remarks during the prosecutor's summation, but we findnothing in the challenged comments that was "so prejudicial to defendant as to rendercounsel's failure to object to them evidence of ineffective assistance of counsel" (People v Albanese, 38 AD3d1015, 1019 [2007], lv denied 8 NY3d 981 [2007]; accord People v Fisher, 89AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012]).
The issues raised in defendant's pro se brief with regard to counsel's failure to obtainfingerprints or object to the manner in which defendant was transported to court involvematters outside the record that are more properly addressed in a motion pursuant to CPLarticle 440 (see People vCarlton, 120 AD3d 1443, 1445 [2014]; People v Willi, 80 AD3d 884, 885 [2011], lv denied16 NY3d 900 [2011]). Defense counsel made appropriate motions and evidentiaryobjections, pursued a reasonable theory of defense, cross-examined witnesses effectivelyand presented cogent opening and closing statements. Viewing the record as a whole, wefind that defendant received meaningful representation (see People v Green, 108 AD3d782, 786 [2013], lv denied 21 NY3d 1074 [2013]; People v Race, 78 AD3d1217, 1221 [2010], lv denied 16 NY3d 835 [2011]).
Finally, we reject defendant's contention that his sentence, which was less than themaximum that he could have received, was harsh and excessive. In view of defendant'scriminal history and the violent nature of his actions, we perceive no abuse of discretionor extraordinary circumstances warranting a modification (see People v Burgette, 118AD3d 1034, 1035 [2014], lv denied 24 NY3d 1118 [2015]; People v Jones, 114 AD3d1080, 1082 [2014], lv denied 24 NY3d 961 [2014]). Defendant's remainingcontentions, including those in his pro se brief, have been reviewed and found to bewithout merit.
Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.