| People v Braithwaite |
| 2015 NY Slip Op 02492 [126 AD3d 993] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Robert Braithwaite, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Rahshanda Sibley of counsel), forappellant.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbartand Paul M. Tarr of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered June 14, 2013, convicting him of assault in the second degree andcriminal possession of a weapon in the third degree, upon a jury trial, and imposingsentence.
Ordered that the judgment is affirmed.
On May 1, 2012, at approximately 5:30 p.m. in the New Brighton section of StatenIsland, the defendant followed the complainant, a casual acquaintance, into aneighborhood grocery store and attacked him with a box cutter. The attack was recordedon videotape by the store's surveillance cameras. The complainant sustained, amongother injuries, lacerations to his left cheek and right index finger. He was treated thesame day at Richmond University Medical Center by Dr. Ragjava Raju, who sutured thelacerations and testified at trial as the People's expert in plastic surgery.
A person is guilty of assault in the second degree when, "[w]ith intent to causephysical injury to another person, he [or she] causes such injury to such person or to athird person by means of a deadly weapon or a dangerous instrument" (Penal Law§ 120.05 [2]). A person is guilty of criminal possession of a weapon in thethird degree when "[s]uch person [possesses any dagger, dangerous knife, dirk, razor. . . or any other dangerous or deadly instrument or weapon with intent touse the same unlawfully against another] and has been previously convicted of anycrime" (Penal Law §§ 265.01 [2]; 265.02 [1]).
The defendant concedes that he assaulted the complainant, as documented by thestore's surveillance camera, but contends that the evidence was legally insufficient toestablish that he used a box cutter, or any sharp instrument, to inflict the lacerations onthe complainant's cheek and finger. The defendant asserts that, instead, the wounds couldhave been caused by the complainant falling against the sharp edge of an ice creamfreezer that was in the area of the altercation.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thatthe defendant possessed [*2]a box cutter, which he usedto inflict the wounds to the complainant's face and finger (see Penal Law§§ 120.05 [2]; 265.01 [2]; 265.02 [1]; People v Ricone, 288AD2d 402 [2001]; People v Tucker, 185 AD2d 908, 909 [1992]).
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Here, the complainant testified that, after the defendant's hand swungtoward him, he felt "a little snip" on his left cheek. He then noticed that the defendantwas holding a silver box cutter, about five inches long, with a sharp-edged razor blade.When the complainant attempted to grab the defendant's right hand and stop him, thecomplainant's right index finder was cut by the blade. Although the defendant contendsthat the medical experts who testified at trial did not rule out the possibility that thelacerations to the complainant's face could have been caused by falling against theexposed metal rim of the ice cream freezer, Dr. Raju testified that it was "almostimpossible." Dr. Raju testified that in order for the complainant's injuries to have beencaused by falling against the freezer, he would have had to assume an "awkwardposition," placing his face against the freezer and sliding it along the metal rim, withouttouching any other part of his skin to the metal. The statements of the two employeeswho were behind the register when the incident began that they did not see any sharpobject or blood, as well as the conflicting testimony of the experts, merely presented acredibility issue for determination by the jury, and there is no basis to disturb the jury'sresolution of that issue in favor of the prosecution (see People v Olson, 35 AD3d 890 [2006], affd 9NY3d 968 [2007]).
The Supreme Court providently exercised its discretion in declining to declare amistrial based on the prosecutor's brief mention of, and the complainant's isolated,unsolicited reference to, the defendant's attempted robbery of the complainant, anuncharged crime. While the references were improper (see People v Morris, 21 NY3d588, 594 [2013]; People v Ventimiglia, 52 NY2d 350, 359 [1981];People v Molineux, 168 NY 264, 293 [1901]), any prejudice to the defendantwas mitigated when the court sustained the objection to the complainant's statement andissued an immediate curative instruction to the jury, and by the court's clear instructions,during opening remarks and in its charge to the jury, that "testimony that the Court hasexcluded or told you to disregard is not evidence and must not be considered" (see People v Townsend, 100AD3d 1029, 1030 [2012]; People v Benloss, 60 AD3d 686, 687 [2009]; People v Whitely, 41 AD3d622, 623 [2007]).
The Supreme Court providently exercised its discretion in permitting the People tooffer certain evidence as to consciousness of guilt. While this evidence was equivocal(see People v Bennett, 79 NY2d 464, 470 [1992]; People v Moses, 63NY2d 299, 308 [1984]; People v Yazum, 13 NY2d 302, 304 [1963]), it tended toprove the People's contention that the defendant avoided the police because he was guiltyof the instant crime (see People v Yazum, 13 NY2d 302 [1963]; People v Scharpf, 60 AD3d1101, 1103 [2009]; Peoplev Young, 51 AD3d 1055, 1056-1057 [2008]; People v Faulk, 192 AD2d717, 717 [1993]). Any ambiguity, as well as the limited probative worth of that evidence,was made perfectly clear to the jury by the court's lengthy limiting instructions (seePeople v Yazum, 13 NY2d at 304; People v Faulk, 192 AD2d at 717).
The defendant's contention that the Supreme Court erred in its handling of a jurynote is unpreserved for appellate review (see CPL 470.05 [2]; People v Alcide, 21 NY3d687, 694 [2013]; People vRamirez, 15 NY3d 824, 826 [2010]; People v Albanese, 45 AD3d 691, 692 [2007]). Defensecounsel was given notice of the contents of the note, and was informed of the substanceof the court's intention not to respond to it because the jury had, in the meantime, sent anote indicating it had reached a verdict. Defense counsel interposed no objection whenthe court solicited comments from counsel. In any event, the fact that a verdict wasreached before the court could respond to the jury note implied that the jury had resolvedthe issue on its own (see Peoplev Sorrell, 108 AD3d 787, 793 [2013]; People v Albanese, 45 AD3d at692; People v Quintana, 262 AD2d 101 [1999]). Balkin, J.P., Hall, Miller andDuffy, JJ., concur.