| People v Hill |
| 2015 NY Slip Op 06266 [130 AD3d 1305] |
| July 23, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJames Hill, Appellant. |
Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of counsel), forappellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedAugust 31, 2012 in Schenectady County, upon a verdict convicting defendant of thecrime of assault in the second degree.
Defendant and his codefendant were charged in separate indictments with offensesrelated to a bar fight wherein they assaulted the bar's owner. The indictments wereconsolidated and, following a joint trial, both men were convicted of assault in thesecond degree. Supreme Court sentenced defendant, as a second violent felony offender,to seven years in prison, followed by five years of postrelease supervision. Thecodefendant appealed, and we recently affirmed his conviction (People v Boddie, 126 AD3d1129 [2015]). Defendant's appeal is now before us, and we likewise affirm.
Defendant contends that the verdict was not supported by legally sufficient evidenceand, moreover, was against the weight of the evidence. As defendant acknowledges, thelegal sufficiency argument is unpreserved, given his failure to renew his motion todismiss at the close of all proof (see People v Boddie, 126 AD3d at 1132; People v Pine, 126 AD3d1112, 1114 [2015]). Nevertheless, his assertion that the trial evidence failed toestablish that he intentionally injured the victim "by means of a . . .dangerous instrument" must be addressed as part of our weight of the evidence review(Penal Law § 120.05 [2]; see People v Boddie, 126 AD3d at 1132).Defendant testified that he threw a bar stool that struck the victim in the legs, and aphysician who examined the victim after the attack testified that he sustained abrasions tohis [*2]legs and complained of left knee pain. The victimwas pinned to the floor during the assault and sustained further injuries when defendantrepeatedly kicked him in the head, neck and chest. Indeed, one eyewitness testified thatdefendant was "stomping [the victim] in the head." Defendant was wearing shoes whenhe did so, and it is clear that "[b]oots or shoes worn while kicking a victim can constitutea dangerous instrument under the assault statute" (People v Hines, 39 AD3d 968, 969 [2007], lvdenied 9 NY3d 876 [2007]; see Penal Law § 10.00 [13];People v Carter, 53 NY2d 113, 116-117 [1981]; People v Lappard, 215AD2d 245, 245 [1995], lv denied 86 NY2d 737 [1995]). Therefore, afterassessing the evidence in a neutral light and according due deference to the jury'sassessment of credibility, we perceive no basis to disturb the verdict (see People v Danielson, 9NY3d 342, 348-349 [2007]; People v Archbold, 257 AD2d 676, 677-678[1999], lv denied 93 NY2d 850 [1999]).
Defendant's remaining arguments do not require extended discussion. Supreme Courtproperly rejected defendant's request to submit the lesser included offense of assault inthe third degree to the jury because, even when viewed in a light most favorable todefendant, "the jury could not have reasonably concluded [from the trial evidence] thatdefendant 'committed the[ ] lesser offense[ ] but not the greater' " (People vBoddie, 126 AD3d at 1132, quoting People v Brown, 100 AD3d 1035, 1037 [2012], lvdenied 20 NY3d 1009 [2013]). Lastly, we perceive no circumstances in this case thatwould warrant a reduction in the sentence as harsh or excessive. Supreme Court imposedthe maximum sentence allowed, but that sentence appropriately took into account thenature of the present offense and defendant's prior criminal history (see People v Brabham, 126AD3d 1040, 1044 [2015], lv denied 25 NY3d 1160 [June 15,2015]; People v Baugh, 101AD3d 1359, 1362-1363 [2012], lv denied 21 NY3d 911 [2013]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment isaffirmed.