| People v Pine |
| 2015 NY Slip Op 02014 [126 AD3d 1112] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1](March 12, 2015)
| The People of the State of New York, Respondent, vTwalesha Pine, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered January 12, 2011, upon a verdict convicting defendant of the crimes ofattempted assault in the first degree, assault in the second degree, criminal possession ofa weapon in the fourth degree and endangering the welfare of a child (three counts).
In or about 2001 or 2002, the victim began what she characterized as an on-and-offrelationship with Peter Davis, who subsequently fathered the eldest of the victim's twodaughters. Although Davis thereafter became involved with defendant, the victim andDavis remained cordial and, on the afternoon of May 24, 2010, the victim and herdaughters—then four years old and two months old—went to Davis'apartment for what she contended was a prearranged visit. Upon arriving, Davis advisedthe victim that defendant and her young daughter, the latter of whom also was fatheredby Davis, were present in the apartment.
According to the victim, as she placed her infant daughter on the floor of theapartment in a car seat, defendant began muttering to herself—questioning thepaternity of the victim's eldest child. A verbal altercation ensued, during the course ofwhich, the victim testified, defendant went into the kitchen, opened a cabinet, pulled outa folding knife with a blade measuring approximately five inches in length andapproached the victim and said, "Let's go outside, bitch"—adding, "[I]f we were inJamaica I would have stabbed you by now or killed you." At this point, according to thevictim, Davis, who had been in the shower, entered the [*2]room and attempted to intervene. When defendant kickedover the car seat containing the victim's infant daughter, the victim reached for defendantand Davis restrained her. As Davis was holding the victim's wrists, defendant reachedaround Davis and began stabbing the victim, ultimately striking her in the head, neck,chest and back. The victim initially was evaluated at Albany Memorial Hospital but, dueto the potentially serious nature of her neck wound, subsequently was transferred to atrauma center for further evaluation.
Defendant thereafter was indicted and charged with attempted assault in the firstdegree, assault in the second degree, criminal possession of a weapon in the fourthdegree and three counts of endangering the welfare of a child.[FN1] Following a jury trial, defendant wasconvicted as charged[FN2] and thereafter was sentenced upon herconviction of attempted assault in the first degree to 3
We affirm. Inasmuch as defendant failed to renew her motion to dismiss at the closeof all proof, her challenge to the legal sufficiency of the evidence is not preserved for ourreview (see People vRobinson, 123 AD3d 1224, 1225 [2014]). "That said, our weight of theevidence [analysis] necessarily involves an evaluation of whether all elements of thecharged crime[s] were proven beyond a reasonable doubt at trial" (People v Menegan, 107 AD3d1166, 1169 [2013] [internal quotation marks and citation omitted]).
Insofar as is relevant here, "[a] person is guilty of assault in the first degree when. . . [w]ith intent to cause serious physical injury to another person, he [orshe] causes such injury to such person . . . by means of a deadly weapon ora dangerous instrument" (Penal Law § 120.10 [1]). As applied to the matterbefore us, a serious physical injury includes a "physical injury which creates a substantialrisk of death" (Penal Law § 10.00 [10]), and a dangerous instrumentincludes "any instrument, . . . which, under the circumstances in which it isused, attempted to be used or threatened to be used, is readily capable of causing death orother serious physical injury" (Penal Law § 10.00 [13]; see People v Johnson, 107AD3d 1161, 1163 [2013], lv denied 21 NY3d 1075 [2013]). "Where thedefendant is charged with an attempt crime, he or she need not succeed in causing aserious physical injury; rather, all that is required is that the defendant intended suchinjury and engaged in conduct directed at accomplishing that objective" (People v Agron, 106 AD3d1126, 1128 [2013], lv denied 21 NY3d 1013 [2013] [internal quotationmarks [*3]and citation omitted]; see Penal Law§ 110.00; People v Johnson, 107 AD3d at 1162-1163). Therequisite intent, in turn, may be inferred from the surrounding circumstances, includingthe defendant's "conduct and remarks" (People v Johnson, 107 AD3d at 1163; see People v Andrews, 78AD3d 1229, 1231 [2010], lv denied 16 NY3d 827 [2011]). Thus, in order tofind defendant guilty of attempted assault in the first degree, the People were required toprove that defendant intended to a inflict serious physical injury and engaged in conducttoward the victim that could have resulted in such injury through the use of a dangerousinstrument (see generally Peoplev Tucker, 91 AD3d 1030, 1032 [2012], lv denied 19 NY3d 1002[2012]).[FN3]
Although no knife was recovered and no blood was found either in the apartment oron defendant's person, the victim testified that, following a verbal altercation, defendantwalked to the kitchen in Davis' apartment, obtained a folding knife with a five-inchblade, invited the victim to step outside, indicated that she would have stabbed or killedthe victim already if they were in defendant's country of origin and thereafter proceededto reach around Davis—who by then had intervened in the altercation—torepeatedly stab the victim with the knife, striking her in the head, neck, back and chest.As to the injuries sustained, the People offered the testimony of the emergency roomphysician who evaluated the victim upon her arrival at Albany Memorial Hospital. Whilethe physician ultimately characterized two of the four wounds sustained by the victim assuperficial, the physician also testified that three of the four wounds had the potential topenetrate the victim's thoracic cavity and that, given the proximity of the victim's neckwound to her jugular vein and carotid artery (as depicted in the photographs contained inthe record), any number of bodily structures (including the victim's lungs and trachea) orsignificant blood vessels could have been compromised, thereby warranting transferringthe victim to a trauma center.
Defendant denied any involvement in the stabbing, disavowed any knowledge of aknife and contended that it was the victim who initiated the physical altercation, and bothshe and Davis—citing the lack of blood either in the apartment or on defendantherself—suggested that the victim's wounds were self-inflicted. This conflictingtestimony, however, presented a credibility issue for the jury to resolve (see People v Foulkes, 117AD3d 1176, 1177 [2014], lv denied 24 NY3d 1084 [2014]; People v Fernandez, 106 AD3d1281, 1285-1286 [2013]). While a different verdict would not have beenunreasonable, viewing the evidence in a neutral light and giving due deference to thejury's credibility determinations, we cannot say that the jury failed to accord the evidencethe weight that it deserved (see People v Johnson, 107 AD3d at 1163).Accordingly, we discern no basis upon which to disturb the verdict convicting defendantof attempted assault in the first degree. We reach a similar conclusion with respect todefendant's conviction of assault in the second degree, which required the People toestablish that, with intent to cause physical injury to the victim, defendant caused suchinjury by means of a dangerous instrument (see Penal Law § 120.05[2]).
[*4] To the extent that defendantcontends that her conviction of criminal possession of a weapon in the fourth degree alsois against the weight of the evidence, we disagree. "A person is guilty of criminalpossession of a weapon in the fourth degree when . . . [h]e [or she]possesses any . . . dangerous knife . . . or any other dangerousor deadly instrument or weapon with intent to use the same unlawfully against another"(Penal Law § 265.01 [2]). As noted previously, a dangerous instrumentencompasses "any instrument, . . . which, under the circumstances in whichit is used, attempted to be used or threatened to be used, is readily capable of causingdeath or other serious physical injury" (Penal Law § 10.00 [13]), and aknife qualifies as a "dangerous knife" within the meaning of Penal Law§ 265.01 (2) "when the circumstances of its possession, including thebehavior of its possessor, demonstrate that the possessor . . . considered it aweapon" (People v Jackson,38 AD3d 1052, 1054 [2007], lv denied 8 NY3d 986 [2007] [internalquotation marks and citation omitted]). Notably, "[a] defendant's mere possession of [aknife], while displaying it in an effort to instill fear, [is] itself presumptive evidence ofhis [or her] intent to use it unlawfully" (People v Taylor, 118 AD3d 1044, 1047 [2014], lvdenied 23 NY3d 1043 [2014] [internal quotation marks and citations omitted]).Contrary to defendant's assertion, "the fact that the knife held by defendant during theincident was not recovered does not render . . . the verdict against theweight of the evidence" (Peoplev Cohens, 81 AD3d 1442, 1444 [2011], lv denied 16 NY3d 894 [2011])and, based upon the testimony previously recounted, we cannot say that the jury failed toaccord the evidence the weight that it deserved with respect to this charge.
Defendant's remaining contentions, including her assertion that the verdictconvicting her of endangering the welfare of a child (three counts) was against theweight of the evidence and that the sentence imposed was harsh and excessive, havebeen examined and found to be lacking in merit. That said, although the judgment ofconviction is affirmed, the uniform sentence and commitment form erroneously indicatesthat defendant was convicted of assault in the second degree under Penal Law§ 120.05 (1) instead of Penal Law § 120.05 (2) (see n1, supra). Accordingly, this matter is remitted so that such document may beamended to accurately reflect the appropriate subdivision under which defendant wasconvicted (cf. People vJones, 112 AD3d 991, 992 [2013], lv denied 23 NY3d 1039[2014]).[FN4]
Peters, P.J., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted for entry of an amended uniform sentence and commitment form.
Footnote 1:Davis apparently wascharged with unlawful imprisonment as a result of this incident.
Footnote 2:Although count 2 of theindictment charging assault in the second degree incorporated the statutory language setforth in Penal Law § 120.05 (2) (intent to cause physical injury by means ofa dangerous instrument), it erroneously cited Penal Law § 120.05 (1) (intentto cause serious physical injury). Following the close of proof, the People moved toamend the indictment to correct this typographical error, and defense counsel consentedto this amendment. As a result, the jury was charged—and correctly so—asto the elements of assault in the second degree under Penal Law § 120.05(2), and defendant was convicted accordingly. This typographical error was repeated,however, in both the presentence investigation report and the uniform sentence andcommitment form (see infra).
Footnote 3:The fact that the injuriesultimately sustained by the victim may have only qualified as physical injuries(see Penal Law § 10.00 [9] [impairment of physical condition orsubstantial pain])—as opposed to serious physical injuries (see Penal Law§ 10.00 [10])—is of no moment. All that is required to sustain aconviction of attempted assault in the first degree is proof that the defendant "intended toinflict serious physical injury and engaged in conduct toward the victim that couldhave resulted in serious physical injury . . . through use of a. . . dangerous instrument" (People v Tucker, 91 AD3d at 1032[emphasis added]).
Footnote 4:Inasmuch as there is noindication that County Court relied upon the erroneous information contained in thepresentence investigation report in imposing sentence, remittal to amend this report is notrequired (see People v Judd,111 AD3d 1421, 1423 [2013], lv denied 23 NY3d 1039 [2014]).