| People v Heyliger |
| 2015 NY Slip Op 02015 [126 AD3d 1117] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDerek Heyliger, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant, and appellant pro se.
Gerald F. Mollen, District Attorney, Binghamton (Sophia Bergman of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered January 18, 2012, upon a verdict convicting defendant of the crimes ofassault in the first degree and criminal possession of a weapon in the second degree (twocounts).
Defendant was indicted for assault in the first degree and two counts of criminalpossession of a weapon in the second degree. The charges arose from an early morningincident on August 15, 2010 at an after hours club in the City of Binghamton, BroomeCounty. The victim, who was shot in the right leg, did not identify defendant as theshooter either at the hospital following the incident or, approximately two weeks later,when he was shown a photo array containing a photograph of defendant. In February2011, after the victim was arrested on narcotics and weapon possession charges, he toldpolice that it was defendant who shot him on August 15, 2010. The jury found defendantguilty as charged and he was sentenced to an aggregate term of 14 years in prison, withfive years of postrelease supervision. Defendant now appeals.
Defendant contends that the jury's verdict on the assault conviction was notsupported by legally sufficient evidence and was contrary to the weight of credibleevidence. A defendant is guilty of assault in the first degree where he or she, with theintent to cause serious physical injury to another, causes such injury by means of a deadlyweapon or a dangerous instrument (see Penal Law § 120.10; People v Daniels, 97 AD3d845, 847 [2012], lv denied 20 NY3d 931 [2012]). A serious physical injuryis one that "creates a substantial risk of death, or which causes [*2]death or serious and protracted disfigurement, protractedimpairment of health or protracted loss or impairment of the function of any bodilyorgan" (Penal Law § 10.00 [10]; see People v Daniels 97 AD3d at847). Here, at the close of trial, defendant moved for a trial order of dismissal(see CPL 290.10 [1]) on the ground that the evidence showed that the victim shothimself with a gun that he had tucked in the waistband of his pants. By this motion,defendant did not preserve his legal insufficiency claim on appeal with regard to thePeople's proof on the element that the victim suffered a serious physical injury.Nevertheless, we evaluate the adequacy of the evidence as to each element of the crimeas part of our weight of the evidence review (see People v Santiago, 118 AD3d 1163, 1164 [2014], lvdenied 24 NY3d 964 [2014]; People v Greenfield, 112 AD3d 1226, 1226 [2013], lvdenied 23 NY3d 1037 [2014]).
At trial, the victim testified that while at the club, he felt someone tugging on thechain necklaces that he was wearing and, when he looked down, he saw the gun pointedto his chest. He testified that he pushed defendant's hand that was holding the gun down,and the gun discharged. The People also presented testimony by Lacy Becker,defendant's ex-girlfriend, Gloria Crowder, the owner of the club, and Claretha Shorts, amutual friend of both defendant and Crowder. Becker testified that defendant told her heshot the victim; Crowder and Shorts testified that defendant asked Shorts to tell Crowderhe was sorry "[f]or shooting some boy in the restaurant."
In contrast, defendant testified that as he was walking through the club, the victim"bumped [him] really hard" and, when defendant protested, the victim lifted his shirt toreveal the gun tucked in his pants. Defendant explained that, in response, he "pushed [thevictim] really hard, boom, pow, gunshot went off." Defendant also presented thetestimony of a private investigator, David Beers. Beers testified that after examining thebullet holes in the clothing that the victim had been wearing the night he was shot, hebelieved that "a projectile penetrated [his boxer shorts] at an angle" and that, based onthe charring around one bullet hole in the boxer shorts, the gun was fired at "extremelyclose" range, indicating that the victim had shot himself. After hearing all the evidence,the jury rejected defendant's version of the events. We find that, when viewed in the lightmost favorable to the People, the evidence was legally sufficient to allow the jury to inferthat defendant shot the victim (see People v Thomas, 105 AD3d 1068, 1070 [2013], lvdenied 21 NY3d 1010 [2013]; People v Baker, 27 AD3d 1006, 1009 [2006], lvdenied 7 NY3d 785 [2006]).
Although a different verdict would not have been unreasonable, viewing theevidence in a neutral light (seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Bleakley, 69NY2d 490, 495 [1987]), we further perceive no error in the jury's finding that the victimsuffered a serious physical injury. Alberto Bartoli, a vascular surgeon, testified that thebullet did not strike or damage any artery in the victim's leg and that the gunshot woundinitially appeared to be superficial. The jury also heard from John Penfield, theemergency room doctor, who testified that when the victim arrived at the hospital, he wasbleeding so profusely that he left a trail of blood on the floor. Further, Penfield testifiedthat the gun shot caused a fracture and other injuries to the victim's leg and knee thatcould cause permanent disability and disfigurement. The victim confirmed that he couldnot bend his leg for nearly a year after the shooting and, at trial, he still did not have fullrange of motion. In our view, the medical evidence and testimony of the victimestablished a protracted impairment of the victim's health pursuant to Penal Law§ 10.00 (10) (seePeople v Khuong Dinh Pham, 31 AD3d 962, 965-966 [2006]).
We also reject defendant's argument that County Court erred in determining that thevictim's identification of defendant from a police photo array was confirmatory. Thehearing and notice requirements of CPL 710.30 do not apply if the witness is"sufficiently familiar with the [*3]defendant such thatthere is little or no risk that police suggestion may have led to misidentification" (People v Miller, 93 AD3d882, 884 [2012], lv denied 19 NY3d 975 [2012] [internal quotation marksand citation omitted]; see People v Rodriguez, 79 NY2d 445, 450 [1992]). Here,the victim testified that, although they had never been formally introduced, he had knowndefendant, who he called "D," for about 10 years from seeing him at different parties andclubs in Binghamton and from his acquaintance with an individual who was eitherdefendant's brother or cousin. The victim explained that he did not identify defendantinitially at the hospital or when he was first shown a photo array because he was in fearfor his own safety. In our view, the victim's uncontroverted testimony was sufficient toestablish his familiarity with defendant (see People v Carter, 57 AD3d 1017, 1018 [2008], lvdenied 12 NY3d 781 [2009]; People v Graham, 283 AD2d 885, 886-887[2001], lv denied 96 NY2d 940 [2001]).
We discern no error in County Court's determination to allow the People to recallinvestigator Matthew Zandy to testify in rebuttal after Beers testified that the victim wasshot at close range. A trial court has discretion to permit the People to present evidencein rebuttal that, more properly, should have been presented in their case-in-chief(see CPL 260.30 [7]; People v Whipple, 97 NY2d 1, 6 [2001]; Peoplev Harris, 57 NY2d 335, 345-346 [1982]; People v Rogers, 81 AD3d 1185, 1186 [2011], lvdenied 16 NY3d 899 [2011]). Here, County Court acted within its discretion inallowing the People to recall Zandy to explain how the damage to the victim's clothingindicated that the gunshot was not fired at close contact. We further disagree withdefendant's argument that Zandy was not properly qualified as an expert witness. Theadmissibility of expert testimony is a matter within County Court's sound discretion (see People v Bedessie, 19NY3d 147, 156 [2012]; People v Surdis, 77 AD3d 1018, 1019 [2010], lvdenied 16 NY3d 800 [2011]). Here, the testimony with regard to Zandy's education,training and practical experience provide ample basis for County Court's determination toqualify him as an expert (seePeople v Menegan, 107 AD3d 1166, 1168 [2013]; People v Wyant, 98 AD3d1277, 1278 [2012]).
Finally, we have considered defendant's pro se supplemental brief. To the extent thathe raises claims that are outside of the record, such claims are more properly addressed ina motion pursuant to CPL article 440 (see People v Malcolm, 74 AD3d 1483, 1486 [2010], lvdenied 15 NY3d 954 [2010]). As to defendant's claim that he received ineffectiveassistance of counsel, viewing the record as a whole, and even accepting that errors mayhave occurred, we find that defendant received meaningful representation (see Peoplev Baldi, 54 NY2d 137, 147 [1981]).
Garry, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.