| People v Degraffenreid |
| 2016 NY Slip Op 02710 [138 AD3d 456] |
| April 7, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Brian Degraffenreid, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Clara H. Salzberg of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered January 12,2012, convicting defendant, after a jury trial, of manslaughter in the first degree, andsentencing him to a term of 18 years, affirmed. Order (same court and Justice), enteredAugust 18, 2014, which denied defendant's CPL 440.10 motion to vacate the judgment,affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]). The evidence showed that defendant joined with two othermen to savagely attack the victim, who ultimately died. Defendant, after throwing thefirst punch, then grabbed, held and continued to hit the victim, while his codefendantrepeatedly hit the victim on the head with a tire iron. The victim suffered numerousserious injuries, including a skull fracture, with fragments of bone lodging in his brain.Under these circumstances, defendant's intent to inflict serious physical injury is readilyinferred (see People vForde, 120 AD3d 509 [2d Dept 2014], lv denied 24 NY3d 1043 [2014];People v Nicholson, 97AD3d 968 [3d Dept 2012], lv denied 19 NY3d 1104 [2012]). The fact thatdefendant only used his fists, or that he was not the one actually wielding the tire iron, oreven that he may not have known in advance that his codefendant would use the tire ironto seriously injure the victim is of no moment in this case. The evidence, establishing thateven after his codefendant began assaulting the victim with a tire iron defendantcontinued to participate in the assault, is sufficient to support a conclusion that defendantshared the requisite intent with his codefendant to commit the crime (Matter of Tatiana N., 73 AD3d186, 191 [1st Dept 2010]).
Defendant's failure to raise any challenge to the court's charge regarding causation ofdeath at a time when the court could have easily rephrased the instruction renders itunpreserved, and we decline to review it in the interests of justice. Were we to considerthe charge, viewed as a whole, we would find that it was proper (People vCastillo, 138 AD3d 448 [1st Dept 2016] [decided simultaneously herewith]). Defendant's argument that theprosecutor engaged in a pattern of improper remarks which deprived him of a fair trial issimilarly unpreserved and we decline to review it in the interests of justice. Alternativelywe hold that the prosecutor's remarks neither prejudiced defendant nor deprived him of afair trial (id.). We also find that defendant's argument that he should have beentried separately from his codefendant is unpreserved and we decline to review it in theinterest of justice. Alternatively, we hold that it lacks merit because the defenses raisedby each defendant were not so irreconcilable as to require severance. Judicial economywarranted a joint trial in this case where the People were relying on substantially thesame evidence to convict each of the defendants (id.).
We find that the trial court properly denied defendant's motion based on claimedineffective assistance of trial counsel (Strickland v Washington, 466 US 668[1984]; People v Caban, 5NY3d 143, 152 [2005]). Counsel pursued a defense that defendant did not have ashared intent with his codefendant to inflict serious physical injury on the victim.Defense [*2]counsel admitted that although he revieweda video recording made 11 minutes before the attack, he did not review it in slow motion.Defendant argues that in slow motion the video clearly shows the codefendant possessingthe tire iron that inflicted the fatal blow to the victim while in the company of defendant,thereby negating his defense. While the video evidence bears upon the defense, we donot need to decide whether, under the circumstances of this case, defense counsel shouldhave viewed the video in slow motion. Defendant's intent was established by evidencethat he participated in the assault after his codefendant actually struck the victim with thetire iron. Consequently, any issue about how long before the assault defendant knewabout the tire iron is largely irrelevant. Under the circumstances, error by defensecounsel, if any, was not so egregious and prejudicial as to compromise defendant's rightto a fair trial (see People vCyrus, 48 AD3d 150 [1st Dept 2007], lv denied 10 NY3d 763[2008]).
Finally, we perceive no basis for reducing the sentence. Concur—Mazzarelli,Richter and Gische, JJ.
Tom, J.P., dissents in a memorandum as follows: For the reasons articulated in mydissent in People v Castillo (138 AD3d 448 [1st Dept 2016] [decided simultaneously herewith]), which involves a jointly triedcodefendant, I would reverse the judgment and remand the matter for a new trial.