| People v Jones |
| 2016 NY Slip Op 01212 [136 AD3d 1153] |
| February 18, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAndrew Jones, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Ryan,J.), rendered July 18, 2001, upon a verdict convicting defendant of the crime of assault inthe second degree.
During the early morning hours of October 6, 2000, defendant[FN1] and two of hisfriends—Julio Vazquez and Wayne Holmes—were patrons at a bar in theCity of Albany. While there, defendant paid a dancer $20 for a lap dance. Apparentlydissatisfied with the dancer's performance, defendant began to quarrel with her,prompting the establishment's owner, Daniel Cadalso, to intervene. Although Cadalsoissued defendant a refund, defendant remained irate, stating that "he was going to shootthe place up" and generally "making a huge scene in front of the whole bar." Cadalsoenlisted the [*2]assistance of Vazquez in an effort toremove defendant from the premises, but Vazquez assured Cadalso that everything wasunder control; defendant, who had just ordered a drink from the bar, was not inclined toleave.
Cadalso then went to speak with Christopher Disonell, who was working the door atthe club, and apprised him of the situation. As Cadalso and Disonell were speaking,defendant approached and launched into another verbal tirade, during the course ofwhich Holmes charged Cadalso and pinned him against the wall while Vazquez blockedthe exit. Following a brief struggle, Cadalso broke free, ran outside and called 911.Meanwhile, defendant approached Disonell, leaned in and said that "he was going tostick [Disonell]." Believing that he "was going to get stabbed," Disonell puncheddefendant in the face and thereafter was struck on the right side of his face with a beerbottle wielded by Holmes. Immediately thereafter, defendant struck Disonell on the leftside of his face with "[a] mixed drink glass." Both the beer bottle and the drink glassbroke upon impact, cutting Disonell's face and sending blood "all over the place."Disonell then went to the bathroom and attempted to stop the bleeding. Cadalso, who stillwas outside on the phone with the police, saw defendant, Holmes and Vazquez exit theclub and climb into "a big, white, flatbed towing vehicle."
When Cadalso reentered the establishment, he observed "[b]roken glass, brokenchairs and a lot of blood." Cadalso then went in search of Disonell, whom hefound—"cut pretty bad"—in the bathroom holding a towel to his face.According to Cadalso, Disonell had "[d]eep—very deep, wide-open lacerations inboth his cheeks and a big, deep cut . . . on the bridge of his nose" and "wasreally, really bleeding profusely." Cadalso drove Disonell to a local hospital,[FN2] following which Cadalsoreturned to the scene and identified defendant, Holmes and Vazquez as the individualsinvolved in the disturbance at the club. Defendant and Holmes then were placed underarrest.
As a result of this incident, defendant was indicted and charged in December 2000with assault in the second degree.[FN3] Following a jury trial in April 2001,defendant was found guilty as charged and thereafter was sentenced, as a second felonyoffender, to seven years in prison followed by five years of postrelease supervision. Thisappeal by defendant ensued.[FN4]
[*3] Defendant first asserts that he was deprived of a fairtrial due to the People's intermingling of the proof relative to Holmes' and defendant'srespective actions on the morning in question. Specifically, defendant contends that thePeople failed to sufficiently differentiate between the injuries to the right and left sides ofDisonell's face, thereby raising the possibility that defendant was indictedfor—and ultimately was convicted of—a crime that he did not actuallycommit. We disagree. The grand jury minutes, as well as the trial transcript—fromthe opening statements, to the testimony offered by Cadalso and Disonell, to the People'sclosing argument—reflect that the People drew a clear distinction between boththe injuries that Disonell received to the right and the left sides of his face and theindividuals who caused such injuries. Accordingly, we are satisfied that defendant was"tried and convicted of only those crimes and upon only those theories charged in theindictment" (People vWilson, 61 AD3d 1269, 1271 [2009] [internal quotation marks and citationsomitted], lv denied 14 NY3d 774 [2010]).
Although defendant's present challenge to the legal sufficiency of the evidence isunpreserved for our review, "our weight of the evidence review necessarily involves anevaluation of whether all elements of the charged crime were proven beyond areasonable doubt at trial" (People v Burch, 97 AD3d 987, 989 n 2 [2012] [internalquotation marks and citations omitted], lv denied 19 NY3d 1101 [2012]). In thisregard, "[a] person is guilty of assault in the second degree when . . . [h]e[or she] recklessly causes serious physical injury to another person by means of a deadlyweapon or a dangerous instrument" (Penal Law § 120.05 [4]; see People v Heier, 90 AD3d1336, 1337 [2011], lv denied 18 NY3d 994 [2012]). "Serious physicalinjury" includes, insofar as is relevant here, "serious and protracted disfigurement" (PenalLaw § 10.00 [10]), and a "[d]angerous instrument" is defined as "anyinstrument, article or substance, . . . which, under the circumstances inwhich it is used, attempted to be used or threatened to be used, is readily capable ofcausing death or other serious physical injury" (Penal Law § 10.00 [13];see People v Griffith, 254 AD2d 753, 753-754 [1998] [10-ounce bar glassqualifies as a dangerous instrument]). Finally, a person acts "recklessly" when he or she"is aware of and consciously disregards a substantial and unjustifiable risk that [a] resultwill occur" (Penal Law § 15.05 [3]; see People v Gallo, 133 AD3d 1088, 1089 [2015]).Specifically, the risk at issue "must be 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]; accord People v Briskin, 125AD3d 1113, 1119 [2015], lv denied 25 NY3d 1069 [2015]).
Here, defendant primarily disputes the proof adduced with respect to the "seriousphysical injury" element of the charged crime. Specifically, defendant contends that therecord as a whole does not establish that Disonell suffered "serious and protracteddisfigurement" as the result of defendant's actions in cutting the left side of Disonell'sface with the drink glass. We disagree. Disonell testified—withoutcontradiction—that he had "plastic surgery" and received 150 stitches to close hisfacial wounds. Disonell further testified that he was on prescription pain medication forapproximately one week following the attack and that he missed three or four weeks ofwork as a result thereof. Additionally, a photograph taken shortly after the assault andadmitted into evidence at trial clearly depicts a significant wound to the left side ofDisonell's face, and Disonell testified at trial (some six months after the incidentoccurred) that he had facial scarring as a result of the assault—specifically, a scaron the left side of his face that was a[*4]"[f]ew inches"long. Finally, the record reflects that Disonell separately displayed the scars on each sideof his face to the jury. Although Disonell's medical records admittedly did not shed muchlight on the extent of his injuries, we nonetheless are satisfied that the jury's verdict wasin accord with the weight of the evidence.
To the extent that defendant argues that County Court failed to define "serious andprotracted disfigurement" for the jury, we need note only that defendant neither objectedto the charge as given nor requested additional or different language. Accordingly, thisissue is unpreserved for our review (see People v Davis, 133 AD3d 911, 914 [2015]). In anyevent, County Court can hardly be faulted for failing to provide the jury with thedefinition of "serious and protracted disfigurement" set forth in People v McKinnon (15 NY3d311 [2010]) when the Court of Appeals did not craft that definition until more thannine years after defendant's jury trial. Defendant's remaining arguments relative to thejury charge and resulting verdict—including his assertion that County Court erredin refusing to charge the lesser included offense of assault in the third degree and that thejury improperly rejected his justification defense—have been examined and foundto be lacking in merit.
That said, we do find merit to defendant's claim that County Court erred in denyinghis Batson challenge with respect to prospective juror No. 2 and, therefore, wereverse the judgment and remit this matter for a new trial. As a threshold matter, wereject the People's assertion that defendant failed to preserve this issue for our review."[A] Batson claim can be raised at any time during the jury selection process" (People v Perez, 37 AD3d152, 154 [2007]; see Matterof Robar v LaBuda, 84 AD3d 129, 138 n 6 [2011]). More to the point, thePeople's present assertion—that defendant failed to specifically object to theprosecutor's refusal to provide a race-neutral explanation for the exclusion of prospectivejuror No. 2—"is inconsistent with the process by which a Batson analysisis made . . . ; it is defendant's objections that give rise to the prosecutor'sobligation to state race-neutral reasons for the disputed challenges in the first place"(People v Davis, 253 AD2d 634, 635 [1998]).[FN5]
As to the merits, where a Batson challenge is raised (see Batson vKentucky, 476 US 79 [1986]), the trial court must engage in a three-step process. "Atstep one, the moving party bears the burden of establishing a prima facie case ofdiscrimination in the exercise of peremptory challenges. Once a prima facie case ofdiscrimination has been established, the burden shifts, at step two, to the nonmovingparty to offer a facially neutral explanation for each suspect challenge. At the third step,the burden shifts back to the moving party to prove purposeful discrimination and thetrial court must determine whether the proffered reasons are pretextual" (People v Hecker, 15 NY3d625, 634-635 [2010] [internal quotation marks and citations omitted]; see People v Grafton, 132AD3d 1065, 1066 [2015]).
Here, the record reflects that the People sought to exercise peremptory challenges toexclude four of the five nonwhite individuals comprising the second panel of prospectivetrial jurors. Indeed, as defense counsel noted, "The only [nonwhite juror] who was notexcluded [from this panel] was the daughter-in-law of the former Chief of Police of theAlbany Police Department." In response to defense counsel's Batson challenge,County Court asked the People—"based upon the peremptory challenges"asserted—to "give a race-neutral reason . . . for th[o]se selections,"thereby implicitly finding that defendant had made a prima facie showing of [*5]discrimination. The People provided such an explanation asto prospective juror Nos. 4, 6 and 17 but refused to offer a race-neutral explanation as toprospective juror No. 2, noting that this juror was the first nonwhite juror that they hadsought to exclude by use of a peremptory challenge. As the prosecuting attorneysuccinctly put it, "I shouldn't be made to give a reason for the first one." Defense counseltook issue with the People's lack of a race-neutral explanation for the exclusion of thisjuror, noting that "the fact that [prospective juror No. 2] was the first person of color [tobe] excluded [was] . . . merely fortuitous." County Court rejecteddefendant's argument on this point and allowed the People to exercise a peremptorychallenge to exclude prospective juror No. 2, as well as prospective juror Nos. 4 and6.
The foregoing stance—that the People were not required to provide arace-neutral explanation for seeking to exclude prospective juror No. 2 because she wasthe first person of color upon whom the People sought to exercise a peremptorychallenge—is simply wrong. "The purpose of the Batson rule is toeliminate discrimination, not minimize it" (People v Bolling, 79 NY2d 317, 321[1992]). Accordingly, because "[t]he exclusion of any [nonwhite prospectivejurors] solely because of their race is constitutionally forbidden" (id. at 321[internal quotation marks and citation omitted]), a defendant asserting a Batsonchallenge need not show a pattern of discrimination. "Although as part of their primafacie case parties often rely on numbers to show a pattern of strikes against a particulargroup of jurors, a prima facie case may be made based on the peremptory challenge of asingle juror that gives rise to an inference of discrimination" (People v Smocum,99 NY2d 418, 421-422 [2003]; see People v Morgan, 75 AD3d 1050, 1053 [2010], lvdenied 15 NY3d 894 [2010]).
Here, County Court implicitly concluded that defendant had made a prima facieshowing of discrimination as to all four of the jurors in question, and the burden thenshifted to the People to provide race-neutral explanations for all four—notjust three—of the nonwhite prospective jurors against whom the People assertedperemptory challenges. Given the People's failure to provide—and County Court'sfailure to require—such an explanation as to all four prospective jurors, defendantis entitled to a new trial.
Peters, P.J., Garry and Clark, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of Albany County for a new trial.
Footnote 1:Although defendant wasindicted as Andrew Jones, the People subsequently discovered that defendant's true namewas Andrew James. At trial, County Court granted the People's oral motion to amend theindictment, but various posttrial materials in the record on appeal, includingcorrespondence from the Department of Corrections and Community Supervision,nonetheless refer to defendant as Andrew Jones. For that reason, we have captioned thismatter in accordance with defendant's name as it appeared on the underlying indictment.There is, however, no question that defendant and Andrew James are one and the sameperson.
Footnote 2:A member of the AlbanyPolice Department, who saw Disonell at the hospital, offered a similar assessment ofDisonell's injuries, stating, "He was sliced up very badly. Both sides of his nose hadpretty big gashes and into his cheek area."
Footnote 3:According to the People,Holmes separately pleaded guilty to assault in the second degree for his role in the attack.
Footnote 4:Although defendantfiled a notice of appeal in July 2001, defendant, for reasons that are not apparent from therecord, did not perfect his appeal in this Court until June 2015. The People did not moveto dismiss the appeal in the interim, and this Court's rule regarding the abandonment ofcriminal appeals (see 22 NYCRR 800.14 [j]) did not go into effect until July 28,2014—after the point in time when this Court, among other things, granteddefendant's motion for permission to proceed as a poor person and for the assignment ofcounsel. As for the underlying delay, defense counsel acknowledged at oral argumentthat, while this appeal was pending, defendant was convicted of murder in the seconddegree—for which he is serving a lengthy term of imprisonment—andsuggested that the delay in pursuing the instant appeal was attributable to that interveningcriminal matter.
Footnote 5:In any event, defensecounsel did expressly note "that there ha[d]n't been any race-neutral reason provided"with respect to prospective juror No. 2.