| People v Alexander |
| 2015 NY Slip Op 03205 [127 AD3d 1429] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Alexander, Appellant. |
Matthew C. Hug, Troy, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Brandon P. Rathbun of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered May 6, 2013, upon a verdict convicting defendant of the crimeof attempted assault in the second degree.
In April 2012, defendant, an inmate in a correctional facility, engaged in a fight withanother inmate (hereinafter the victim). Defendant was charged in a four-countindictment and convicted by a jury of attempted assault in the second degree. CountyCourt sentenced him as a second felony offender to a prison term of 2 to 4 years.Defendant appeals.
Initially, defendant contends that he was deprived of due process by a delay ofapproximately seven months between the incident and the issuance of the indictment. Anunreasonable and unjustified indictment delay violates a defendant's due process rightsand may result in dismissal of the indictment, even when no prejudice results (seePeople v Lesiuk, 81 NY2d 485, 490 [1993]; People v Morris, 25 AD3d 915, 916 [2006], lvdenied 6 NY3d 851 [2006]). The relevant factors in determining whether a delay wasunreasonable are the same as those applied to speedy trial claims, including "the extent ofthe delay, reason for the delay, nature of the underlying charges, any extended pretrialincarceration and any indications of prejudice or impairment to the defense attributable tothe delay" (People v Garcia,46 AD3d 1120, 1120-1121 [2007], lv denied 10 NY3d 863 [2008]; accord People v Ruise, 86AD3d 722, 722-723 [2011], lv denied 17 NY3d 861 [2011]; see People vVernace, 96 NY2d 886, 887 [2001]). Here, the People offered no explanation for the[*2]delay. However, the seven-month period between theincident and the indictment was not egregiously long (see People v Staton, 297AD2d 876, 876-877 [2002], lv denied 99 NY2d 565 [2002] [six months and 21days]; People v Diaz, 277 AD2d 723, 724 [2000], lv denied 96 NY2d 758[2001] [six months]; People v Allah, 264 AD2d 902, 902-903 [1999] [ninemonths]; People v Cooper, 258 AD2d 815, 816 [1999], lv denied 93NY2d 1016 [1999] [seven months]). The charges against defendant were serious and, ashe was already incarcerated, "the delay did not impose a further burden upon his liberty"(People v McCormick, 17AD3d 785, 786 [2005]). As for prejudice, nothing in the record substantiatesdefendant's assertion that the delay prevented him from determining the identities ofother inmates who might have witnessed the incident but could have been released ortransferred in the interim (compare People v Johnson, 38 NY2d 271, 277 [1975]).Accordingly, we find that defendant was not deprived of his due process rights on thisground.
Defendant next contends that his conviction was not supported by legally sufficientevidence and was against the weight of the evidence. To convict defendant of attemptedassault in the second degree, the People were required to prove that he intended to causephysical injury to another person and "engage[d] in conduct which tend[ed] to effect thecommission of such crime" (Penal Law § 110.00; see Penal Law§ 120.05 [7]; People v Gannon, 301 AD2d 873, 873[2003]).[FN1] Thetestimony established that several correction officers saw two inmates fighting with eachother, throwing punches and struggling back and forth. One of the officers testified thathe saw a weapon that resembled an ice pick in the right hand of one of the inmates,which that inmate wielded about four times in a downward striking motion toward theother participant; the other participant was making slashing motions from left to right.The officer later identified defendant as the inmate he had seen with the ice pick weapon.Officers interrupted the fight, ordered both inmates to lie on the ground and placed themin restraints. When defendant was assisted to his feet, a sergeant observed a weaponresembling an ice pick on the floor where defendant had been lying. A weapon with arazor blade was found under the victim. Defendant suffered several straight-edgedlacerations that were consistent with the razor blade, while the victim sustained multiplepuncture wounds and scratches to his head and upper torso that were consistent with theweapon that looked like an ice pick.
Defendant offered a different account, testifying that he was suddenly attacked by aninmate wielding an ice pick. While defendant attempted to fend off this attack, he felthimself being cut by a different weapon employed by another individual. He was unableto identify either of these attackers, and the inmate with the ice pick ran away whencorrection officers approached. Defendant turned around and began fighting with thefirst person he found behind him, who proved to be the victim. Defendant explained, "I[was] already upset. So whoever was behind me [was] getting it." He stated that he didnot possess a weapon, was left-handed and was not ambidextrous. We find that theevidence, viewed in the light most favorable to the People, is legally sufficient toestablish "that defendant intended to cause physical injury to another inmate and engagedin conduct tending to effect commission of that crime" (People v Gannon, 301AD2d at 873; see People v Hawkins, 290 AD2d 812, 813 [2002], affd 99NY2d 592 [2003]). Further, although another verdict would not have been unreasonable,viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations, we are satisfied that the verdict was not against the weight of theevidence (see People vChasey, 5 AD3d 815, 816-817 [2004], lv denied 2 NY3d 797 [2004];see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
[*3] We find no merit in defendant's contention that hisstate and federal due process rights were violated when he was shackled during trial.Because of the risk of prejudice, a defendant has a right to be free of visible restraintsduring criminal proceedings unless the trial court states a case-specific reason for theiruse (see Deck v Missouri, 544 US 622, 624 [2005]; People v Best, 19 NY3d739, 743 [2012]; People vClyde, 18 NY3d 145, 153-154 [2011], cert denied 566 US &mdash, 132S Ct 1921 [2012]). Here, County Court failed to state its reasons for requiring defendantto wear leg shackles. However, the record reveals that the restraints were notvisible, nor were they otherwise called to the jury's attention. Before trial, the Peoplerequested that defendant wear restraints during the trial because of his lengthydisciplinary history and the serious nature of his offense. Defense counsel objected basedupon defendant's appropriate behavior during pretrial proceedings. County Court agreedthat defendant's conduct had been "professional" and deferred its decision pendingreview of his disciplinary history. At the beginning of trial, the People renewed theirrequest and defense counsel repeated his objection. County Court ruled that defendant'shand restraints should be removed but that his leg shackles should be retained, statingthat "[t]hey are beneath the desk. The jurors can't see them."[FN2] Defense counsel neither objected nordisagreed with the statement that the jury would be unable to see defendant's shackles;instead, he requested that the court require everyone to remain seated when the juryentered and exited the courtroom, so that jurors would not hear the sound madeby the shackles when defendant changed position. The court granted this request and,throughout the trial, excused the jury before defendant took the stand, left the stand orwas remanded to the custody of correction officers. Nothing in the record suggests thatthe shackles were ever visible to the jurors or that any other circumstances could have ledthem to infer that defendant's legs were restrained (compare People v Cruz, 17 NY3d 941, 944-945 [2011]; People v Jenner, 39 AD3d1083, 1087-1088 [2007], lv denied 9 NY3d 845 [2007]; People vRoraback, 242 AD2d 400, 403 [1997]). On this record, we thus find that there is noreasonable possibility that the use of shackles resulted in prejudice to defendant, and hewas not deprived of a fair trial on this ground.
County Court did not abuse its discretion in denying defendant's untimely request fora missing witness charge. A request for such a charge "must be raised as soon aspracticable so that the court can appropriately exercise its discretion and the parties cantailor their trial strategy to avoid 'substantial possibilities of surprise' "(People v Gonzalez, 68 NY2d 424, 428 [1986], quoting McCormick, Evidence§ 272 at 806 [3d ed 1984]; accord People v Turner, 73 AD3d 1282, 1283-1284 [2010],lv denied 15 NY3d 896 [2010]). Here, the request was not made until after theclose of proof and was thus untimely (see People v Rodney, 79 AD3d 1363, 1365 [2010], lvdenied 19 NY3d 1105 [2012]).[FN3]
Finally, defendant contends that the verdict was inherently self-contradictory in thatthe instructions given to the jury on the charge on which defendant was convicted wereidentical to those given for a separate charge upon which he was acquitted. As defendantdid not raise this assertion before the jury was discharged and County Court had noopportunity to address it, it is unpreserved (see People v Muhammad, 17 NY3d 532, 541 n 5 [2011];People v Rodwell, 122 [*4]AD3d 1065, 1068[2014]; People v Dale, 115AD3d 1002, 1006-1007 [2014]). In any event, our review reveals that theinstructions on the two charges were not, in fact, identical. As charged, "a theoreticaldefendant" could have been guilty of the first offense, but not of the second (People vMuhammad, 17 NY3d at 543; see People v Elmy, 117 AD3d 1183, 1184 [2014]). Thus,we find no reason to take corrective action in the interest of justice (see People v Rolfe, 83 AD3d1217, 1218 [2011], lv denied 17 NY3d 809 [2011]; People v Pearson, 69 AD3d1226, 1227 [2010], lv denied 15 NY3d 755 [2010]).
Peters, P.J., Lahtinen and Lynch, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant stipulated thathe was a previously convicted felon and was incarcerated in a correctional facility whenthe incident occurred (see Penal Law § 120.05 [7]).
Footnote 2:Although not revealed inthe record, the People state on appeal that the desks in the courtroom are constructedwith wooden skirting that blocks any view of their undersides.
Footnote 3:Nor did defendant revealthat the proposed testimony from the two witnesses met the necessary prerequisites tosupport the charge (see DeVitov Feliciano, 22 NY3d 159, 165-166 [2013]).