| People v Hicks |
| 2015 NY Slip Op 04348 [128 AD3d 1221] |
| May 21, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWayne E. Hicks, Appellant. |
Michael P. Graven, Owego, for appellant.
Gerald F. Mollen, District Attorney, Binghamton, for respondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Smith,J.), rendered October 24, 2012, upon a verdict convicting defendant of the crimes ofassault in the second degree, assault in the third degree and petit larceny.
In October 2011, two police officers, Jared Fiacco and Joseph Kennedy, respondedto a 911 call reporting a robbery in progress at a retail store. After learning that thesuspects had just left the store, Fiacco followed defendant and his companion through theparking lot, ordering them to stop. Instead, the men got into a vehicle, with defendantbehind the wheel. Fiacco positioned himself in front of the vehicle, as Kennedy arrivedand stood near the driver's side door. Both officers, with guns drawn, demanded that themen exit the vehicle. Instead, as described by Kennedy, "[defendant] look[ed] up at me,we actually made eye contact" and then "he [put] the car in gear and stomped on the gas."The vehicle struck Fiacco as the officers fired their weapons. Defendant was shotmultiple times while Fiacco sustained a leg injury.
Defendant was charged by indictment with two counts of assault in the seconddegree and petit larceny. After a jury trial, defendant was convicted of assault in thesecond degree, assault in the third degree—as a lesser included offense of thesecond count of assault in the second degree—and petit larceny. Defendant wassentenced to an aggregate prison term of six years followed by three years of postreleasesupervision. Defendant appeals.
We affirm. Contrary to defendant's argument, we find that the evidence was legallysufficient to establish that Fiacco sustained a physical injury as an element of each assault[*2]conviction (see Penal Law§§ 120.05 [3]; 120.00 [2]). Physical injury, as used in the Penal Law,is defined as an "impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). To meet the statutory pain threshold, the pain must be "morethan slight or trivial" but need not be "severe or intense" (People v Chiddick, 8 NY3d445, 447 [2007]; see Peoplev Williams, 46 AD3d 1115, 1115 [2007], lv denied 10 NY3d 818[2008]; People v Rivera, 42AD3d 587, 588 [2007], lv denied 9 NY3d 880 [2007]). Pertinent factors inidentifying a physical injury include "the injury viewed objectively, the victim'ssubjective description of the injury and [his or] her pain, and whether the victim soughtmedical treatment" (People v Rivera, 42 AD3d at 588).
Viewing the evidence in the light most favorable to the People, as required for a legalsufficiency challenge (seePeople v Danielson, 9 NY3d 342, 349 [2007]), the evidence establishes thatFiacco was struck by defendant's vehicle in the right leg below the knee and thrown tothe passenger side of the vehicle. Fiacco was able to participate in completing the arrest,but after returning to the police station, he observed that his right shin was "raised andred" and "extremely tender to the touch." Later that evening, Fiacco went to theemergency room, where he reported having difficulty walking and described the pain tothe emergency room physician as an 8 on a scale of 1 to 10. The physician describedFiacco's injury as a contusion, with slight swelling, and prescribed pain medication.Fiacco testified regarding the pain and that his difficulty walking lasted for several days.In our view, this evidence was legally sufficient to support the jury's finding that Fiaccosuffered a physical injury during the episode in question.
Defendant further asserts that the weight of the evidence fails to support eitherassault conviction since there was no showing that defendant intended to cause physicalinjury to Fiacco. The argument misses the mark and is without merit. The felony assaultconviction required proof that defendant intended to prevent a police officer fromperforming a lawful duty, not intent to cause physical injury to the officer (seePenal Law § 120.05 [3]). By acknowledging that he was attempting to fleethe scene, and without disputing the petit larceny charge, the jury could reasonablyconclude that defendant intended to prevent the officers from effecting an arrest when heaccelerated the vehicle. For the misdemeanor assault, the People were required to provethat defendant recklessly caused physical injury to Fiacco, not that he intended to do so(see Penal Law § 120.00 [2]). To this end, the People were requiredto establish that defendant "[was] aware of and consciously disregard[ed] a substantialand unjustifiable risk" that was of "such nature and degree that disregard thereofconstitutes a gross deviation from the standard of conduct that a reasonable person wouldobserve in the situation" (Penal Law § 15.05 [3]). Both officers and abystander testified that Fiacco stood directly in front of and within a few feet ofdefendant's vehicle when defendant accelerated the vehicle striking him. Moreover,forensic testimony was introduced showing that portions of the bumper and hood wereclean, consistent with Fiacco's testimony that he placed his hand on the hood and fell tothe passenger side as the vehicle drove forward. Although defendant maintains that theevidence shows that he did not strike Fiacco with his vehicle and that he was attemptingto avoid the officers by driving to the left, we conclude that the weight of the evidencesupports the jury's determination that defendant acted recklessly (see People v Powell, 101AD3d 1369, 1370 [2012], lv denied 21 NY3d 1019 [2013]; People v Heier, 90 AD3d1336, 1338 [2011], lv denied 18 NY3d 994 [2012]; People v Van Guilder, 29AD3d 1226, 1228 [2006]).
Finally, defendant's assertion that the sentence is harsh and excessive isunpersuasive. The sentence imposed was within the statutory range and, given theflagrant circumstances of this case, coupled with defendant's extensive criminal history,we find no convincing basis to disturb the sentence (see People v McCray, 96 AD3d 1160, 1161-1162 [2012],lv denied 19 NY3d 1104 [2012]; People v Williams, 89 AD3d 1222, 1224 [2011], lvdenied 18 NY3d 887 [2012]).
[*3] Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.