| People v Harden |
| 2015 NY Slip Op 08872 [134 AD3d 1160] |
| December 3, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAnthony C. Harden, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Garry, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July23, 2013 in Albany County, upon a verdict convicting defendant of the crime of assaultin the second degree (two counts).
Defendant was previously convicted of several crimes arising out of an altercation inthe City of Albany in which three men (hereinafter victim one, victim two and victimthree) received knife wounds. Upon defendant's prior appeal, this Court reversed theconvictions and remitted the matter for a new trial (99 AD3d 1031, 1034 [2012], lvdenied 20 NY3d 986 [2012]). Following the second trial, the jury acquitteddefendant of all charges involving victim one and convicted him of one count each ofassault in the second degree as to victim two and victim three. He was sentenced as asecond felony offender to consecutive prison terms of seven years followed by five yearsof postrelease supervision on the conviction as to victim two, and five years followed byfive years of postrelease supervision on the conviction as to victim three. Defendantappeals.
Defendant contends that the evidence was legally insufficient to establish either thathe intended to cause physical injury or that he was the aggressor rather than trying toescape from the confrontation. He further asserts that the jury's rejection of hisjustification defense was against the weight of the evidence. Defendant's legalsufficiency arguments are unpreserved as they were not specifically addressed in hisgeneral trial motion for dismissal (see People v Parker, 127 AD3d 1425, 1426 [2015]).Nevertheless, "our weight of the evidence analysis [*2]necessarily involves an evaluation of whether all elementsof the charged crimes were proven beyond a reasonable doubt at trial" (People v Pine, 126 AD3d1112, 1114 [2015] [internal quotation marks, brackets and citations omitted]).
The People's witnesses included the three victims, their four friends—victimone's wife, another woman and two men—with whom the victims had beenwalking home from a street festival, and several onlookers. Taken as a whole, theirtestimony revealed that the incident began with an angry verbal exchange betweendefendant's girlfriend, who was driving a vehicle in which defendant was riding, andvictim one and his wife, who testified that they had fallen behind the rest of their groupand that the vehicle nearly struck them as they were crossing the street. Following thisinitial incident, victim one and his wife continued walking up the street. Meanwhile, thevehicle pulled over and defendant got out, pulled off his sweatshirt, threw it into thevehicle and followed them. One of the bystanders described defendant as so "agitated"that the bystander "had a bad feeling" and recorded the vehicle's license plate number;another bystander testified that defendant followed victim one and his wife for about1,000 yards.
Upon catching up with victim one and his wife, defendant began to castigate them,and the rest of the group joined the increasingly heated discussion. There was testimonythat some of the participants allegedly tried to defuse the confrontation, advisingdefendant that they did not want to fight and asking him to leave them alone, butdefendant was "very aggressive," "was looking for a fight," and said "I want it now."Meanwhile, defendant's girlfriend drove her vehicle the wrong way on a one-way streetto join them, got out and entered the confrontation, which then quickly erupted into twoseparate physical fights, one involving the women and the other the men. The People'switnesses said that the violence began when defendant's girlfriend struck victim one'swife, that defendant then struck or shoved the other woman in the group as she tried tohelp victim one's wife, and that when victim one tried to help his wife, defendant struckhim, breaking his nose. Defendant allegedly kept punching victim one while the otherstried unsuccessfully to pull him off; then defendant and the three victims—andaccording to some witnesses, the other two men—began exchanging punches. Oneof the other two men testified that he hung back, watching the fight, and after 15 or 20seconds saw defendant reach into his waistband, withdraw a knife and stab victim one,who fell to the ground. When victim two "lean[ed] in" to help victim one, defendantstabbed him in the neck. Victim three testified that defendant, who was very close to him,then motioned at him and said, "I live for this s . . . ." Victim three backedaway and did not realize until a few moments later that he had been stabbed in the handand the torso. Several other witnesses stated that they heard defendant utter this phrase;these witnesses included an EMT who had happened upon the scene, who also testifiedthat he saw defendant swinging a knife against three men and that his demeanor was veryaggressive.
Defendant's girlfriend retreated to her vehicle, followed by defendant; severalwitnesses saw a knife in his hand as he ran and, when he neared the vehicle, saw himlunge toward a man who was taking a picture of its license plate. As this man backedaway, he took a blurry photograph, later admitted at trial, of defendant running towardhim with what appeared to be a knife. Defendant and his girlfriend then fled in thevehicle; police arrested defendant at his home later that night.
Defendant and his witnesses offered a different account. Defendant said that hebecame upset when someone threw dirt into the vehicle during the initial confrontation,which might have struck his young child in the backseat; he stated that he was trying todiscuss the incident with victim one when the other four men surrounded him, saying,"I'm game" and "let's party." Defendant's girlfriend said that all five men weresurrounding defendant when she joined the [*3]altercation, and that she heard one of the men tell defendantthat he was "game" just before the fight among the women began, which she claimed wasinitiated by victim one's wife. When that altercation ended, she saw defendant backed upagainst a car fighting with all five men.
Defendant denied that he initiated the fight among the men, testifying that he did nothit anyone until after someone struck him in the back of the head as he tried to help hisgirlfriend. He said he then backed up, trying to escape as all five men threw punches athim, and fell to the ground, where the men kneed and kicked him. When he managed toget up, the men pinned him first to one parked car and then to a second car, where one ofthe men pulled out a knife. Defendant said that he snatched the knife away by its handle,using his left hand, and then started stabbing, testifying that if he had not done so, hewould have been killed. When the men backed off, he dropped the knife and fled to hisvehicle, explaining that the object visible in his hand in the blurry photograph taken atthe scene was not a knife, but his girlfriend's flip flops, which he had allegedly retrievedafter she lost them.[FN1] He further stated that two of thevictims—who, according to other witnesses, were incapacitated by their woundsby this time—chased him to the vehicle. A witness who saw the confrontationfrom a nearby car supported defendant's story in part, testifying that he saw five menfighting with one man who was backed up against a car, and that they were "beating himup pretty bad." Defendant suffered injuries to his face during the struggle,but—despite his claim that he grabbed the knife from one of the othermen—had no lacerations on his hands other than a partially healed, scabbed-overcut on his left thumb. He acknowledged that he did not mention this cut to the medicalprofessionals who treated his other injuries.
Based upon the testimony of defendant's witnesses, a different outcome would nothave been unreasonable. Nevertheless, upon our review, we find no reason to disturb thejury verdict rejecting defendant's justification defense, which applies when conduct thatwould otherwise have been criminal "is necessary as an emergency measure to avoid animminent . . . injury which is about to occur by reason of a situationoccasioned or developed through no fault of the actor," and the threatened injury is sograve as to outweigh the harm resulting from the actor's conduct (Penal Law§ 35.05 [2]). The conflicts in the testimony as to whether defendant was theaggressor or was trying to escape, and as to whether he was the first to escalate theconfrontation by wielding the knife or took it from one of the other men to defendhimself, were for the jury to resolve (see People v Vanderhorst, 117 AD3d 1197, 1199-1200[2014], lv denied 24 NY3d 1089 [2014]).
Defendant's intent to cause injury was a factual question that the jury could inferfrom his conduct and the surrounding circumstances (see People v Francis, 83 AD3d 1119, 1122 [2011], lvdenied 17 NY3d 806 [2011]; People v Gonzalez, 64 AD3d 1038, 1041 [2009], lvdenied 13 NY3d 796 [2009]). Here, one of the witnesses who saw defendant usingthe knife testified that he was not just waving it, but was "jabbing" it with a rapidoutward movement of his arm, which the witness described as a "jack motion with fullintent to strike." As to defendant's claim that the wounds he inflicted were notsufficiently severe as to indicate that he intended to cause injury, witnesses said that aftervictim two was stabbed in the neck, he was coughing and "choking on his own blood"and that his head "[blew] up like a balloon" to twice its normal size. He was intubated,required emergency surgery and was hospitalized for a week, including two days inintensive care. The thoracic surgeon who treated him testified that the laceration in hisclavicle had "completely violated" the front wall of his trachea, or airway, and [*4]also caused an abrasion on the trachea's back wall, and thatthese injuries posed a substantial risk of death. Victim three was stabbed in the abdomenand the hand and required surgery to repair a severed extensor tendon. His surgeontestified that he would have lost the ability to use his index finger if the tendon had notbeen repaired. Victim three testified that he spent two months in physical therapy, had torelearn the ability to write and, several years later, still suffered occasional pain and otherresidual effects. Defendant's intent to cause injury may readily be inferred from theseverity of these wounds (seePeople v Newland, 83 AD3d 1202, 1204 [2011], lv denied 17 NY3d 798[2011]). Given this evidence, as well as the testimony that defendant initiated theconfrontation by pursuing the victims and then escalated it by pulling out the knife, thejury's rejection of the justification defense was not contrary to the weight of the evidence(see People v Green, 121AD3d 1294, 1295 [2014], lv denied 25 NY3d 1164 [2015]; People v Fisher, 89 AD3d1135, 1137-1138 [2011], lv denied 18 NY3d 883 [2012]; People v Terk, 24 AD3d1038, 1039-1040 [2005]).
Defendant next contends that Supreme Court's jury instruction on justification waserroneous. However, defendant's counsel expressly agreed to the instruction during thecharge conference and, thereafter, neither objected when the charge was given nor whenthe jury asked to have it reread during deliberations. Counsel objected to the instructionfor the first time only after the court received a note from the jury indicating that it hadreached a unanimous verdict. As this objection came too late to permit any error to becorrected, the claim is unpreserved (see CPL 470.05 [2]; People v Houck, 101 AD3d1239, 1240 [2012]). We further reject defendant's claim that his counsel's failure toobject to the instruction constituted ineffective assistance, which "does not arise fromcounsel's failure to make a motion or argument that has little or no chance of success"(People v Clarke, 110AD3d 1341, 1345 [2013], lv denied 22 NY3d 1197 [2014] [internalquotation marks and citations omitted]). A timely objection to the instruction would nothave succeeded, as our review reveals no error. Contrary to defendant's claim, the courtdid not err in instructing the jury to assess defendant's subjective belief that deadlyphysical force was necessary to defend himself with reference to each individual victim,rather than with reference to all of the circumstances.[FN2] Penal Law § 35.15 (2)imposes a two-part standard by which the jury must first determine whether a defendantsubjectively believed that the use of deadly physical force against an individual wasnecessary because that individual was using or about to use deadly force, and then mustdetermine whether this belief was objectively reasonable in view of all the circumstances(see Matter of Y.K., 87 NY2d 430, 433-434 [1996]). The court's instructionmirrored these requirements and, using the language of the pattern charge, properlyinstructed the jury to consider the subjective element of the defense with regard to eachvictim and to consider the surrounding circumstances with regard to the second,objective prong of the test (seePeople v Young, 33 AD3d 1120, 1122-1123 [2006], lv denied 8 NY3d929 [2007]; CJI2d[NY] Justification: Use of Deadly Physical Force in Defense of aPerson).
Defendant next contends that Supreme Court erred in failing to poll the jury on thecounts as to which he was acquitted. This contention is unpreserved; a jury must bepolled upon either party's request, but a defendant cannot challenge the manner in whichthe poll was taken on appeal if he or she failed to call the trial court's attention to thealleged deficiency (see CPL 310.80; People v Mercado, 91 NY2d 960,963 [1998]; People vHenry, 64 AD3d 804, 806 [2009], lv denied 13 NY3d 860 [2009]; People v Booker, 53 AD3d697, 704 [2008], lv denied [*5]11 NY3d 853[2008]). Here, defendant asked the court to poll the jury, agreed that it would besufficient to do so only as to the guilty verdicts, and at no time objected to thatprocedure.
Finally, defendant's sentence was not harsh or excessive. The aggregate of the twoconsecutive terms was shorter than the maximum that defendant could have received as asecond felony offender (see Penal Law §§ 70.06 [3] [d];70.25). In view of defendant's lack of remorse, his criminal history, and the severity ofthe victims' injuries, we find no abuse of discretion or extraordinary circumstanceswarranting modification (seePeople v Hill, 130 AD3d 1305, 1306 [2015]; People v Ferrer, 115 AD3d1113, 1114 [2014]; Peoplev Baugh, 101 AD3d 1359, 1362-1363 [2012], lv denied 21 NY3d 911[2013]).
Egan Jr., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:The knife was neverlocated, although police testified that they exhaustively searched the area where the fightoccurred.
Footnote 2:The use of a knifeconstitutes deadly physical force as a matter of law (see People v Taylor, 118 AD3d 1044, 1048 [2014], lvdenied 23 NY3d 1043 [2014]; People v Jones, 24 AD3d 815, 816 [2005], lvdenied 6 NY3d 777 [2006]).