| People v Camlin |
| 2015 NY Slip Op 08002 [133 AD3d 909] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Stacy Camlin, Appellant. |
Barry J. Jones, Hudson Falls, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County(Tomlinson, J.), rendered June 7, 2013, upon a verdict convicting defendant of thecrimes of assault in the second degree, assault in the third degree and criminal possessionof a weapon in the third degree.
When Henry Darden failed to pay defendant money allegedly owed on a small drugtransaction, the two began fist fighting on a city street in view of several witnesses.During the fight, Darden sustained two nonfatal stab wounds. Thereafter, defendant wascharged in a three-count indictment. Following a jury trial, he was convicted of thecrimes of assault in the third degree as a lesser included offense to a charge of attemptedassault in the first degree, assault in the second degree and criminal possession of aweapon in the third degree. Defendant was sentenced as a second felony offender to anaggregate prison term of 6
Defendant contends that the first count of the indictment, charging attempted assaultin the first degree, was jurisdictionally defective and, thus, County Court erred ingranting the People's motion prior to trial to amend it to add the phrase "by means of adeadly weapon or a dangerous instrument." We are unpersuaded. "Where an indictmentcount incorporates by reference the statutory provision applicable to the crime intendedto be charged, it has been repeatedly held that this is sufficient to apprise the defendant ofthe charge and, therefore, renders the count jurisdictionally valid" (People v Burch, 97 AD3d987, 988 [2012], lv denied 19 NY3d 1101 [2012] [internal quotation marks,brackets and citations omitted]; see People v Champion, 20 AD3d 772, 774 [2005]; cf. People v Boula, 106 AD3d1371, 1372 [2013], lv denied 21 NY3d [*2]1040 [2013] ["such reference may be negated. . . by the inclusion of conduct that does not constitute the crimecharged"]). The indictment specifically recited in the first count that defendant was beingcharged under Penal Law §§ 110.00 and 120.10 (1). The languageadded in the amendment mirrored the cited statutory language of Penal Law§ 120.10 (1). The amendment did not change the theory of the case orprejudice defendant (see Peoplev Hawkins, 130 AD3d 1298, 1301-1302 [2015], lv denied 26 NY3d 968[2015]; People v Hall, 125AD3d 1095, 1096 [2015]; People v Cruz, 61 AD3d 1111, 1112 [2009]).
Next, defendant argues that he was denied the effective assistance of counsel becausehis counsel failed to make a timely motion to dismiss the indictment after defendant hadtestified before the grand jury in prison clothing. "Effective assistance of counsel issatisfied '[s]o long as the evidence, the law, and the circumstances of a particular case,viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation' " (People v Wiggins, 89 NY2d 872,873 [1996], quoting People v Baldi, 54 NY2d 137, 147 [1981]). Initially, we notethat since the grand jury minutes are not part of the record, we cannot determine whetherthe prosecutor provided a curative instruction regarding defendant's clothing (seePeople v Fells, 279 AD2d 706, 708 [2001], lv denied 96 NY2d 758 [2001];People v Di Fondi, 275 AD2d 1018, 1018 [2000], lv denied 95 NY2d933 [2000]). In any event, under the circumstances of this case and after considering thetotality of counsel's representation, this single error did not deprive defendant ofmeaningful representation (seePeople v Porter, 82 AD3d 1412, 1416 [2011], lv denied 16 NY3d 898[2011]; People v Littebrant,55 AD3d 1151, 1153 [2008], lv denied 12 NY3d 818 [2009]).
Finally, defendant asserts that the verdict was against the weight of the evidence. In aweight of the evidence review, we "must, like the trier of fact below, weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internalquotation marks and citations omitted]), while according deference to the factfinder'scredibility determinations (see People v Bleakley, 69 NY2d 490, 495 [1987]).Here, Darden's testimony, as well as the testimony from the several witnesses to the fightand the doctor who treated Darden, provided sufficient proof as to each of the elementsof the crimes. Although defendant testified at trial and denied having a knife during thefight and also claimed that Darden had a sharp object in his hand, this testimony createdcredibility issues. After viewing the evidence in the record in a neutral light andaccording deference to the jury's credibility determinations, we find that the jury's verdictwas not contrary to the weight of the evidence.
Peters, P.J., McCarthy and Lynch, JJ., concur. Ordered that the judgment isaffirmed.