| People v Smith |
| 2016 NY Slip Op 08773 [145 AD3d 1628] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWillie D. Smith, III, Appellant. |
The Law Office of Guy A. Talia, Rochester (Guy A. Talia of counsel), fordefendant-appellant.
Kristyna S. Mills, District Attorney, Watertown (Sean R. Sterling of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered September 12, 2014. The judgment convicted defendant, upon a jury verdict, ofassault in the first degree, assault in the second degree, reckless endangerment in the firstdegree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of reckless endangerment in the firstdegree and dismissing count three of the indictment, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the first degree (Penal Law § 120.10 [3]), assault in thesecond degree (§ 120.05 [9]), reckless endangerment in the first degree(§ 120.25), and endangering the welfare of a child (§ 260.10[1]). As the People correctly concede, "[r]eckless endangerment in the first degree. . . is a lesser included offense of assault in the first degree" (People vCotton, 214 AD2d 994, 994 [1995], lv denied 86 NY2d 733 [1995]; see People v Glanda, 18 AD3d956, 959 [2005], lv denied 6 NY3d 754 [2005], reconsideration denied6 NY3d 848 [2006]). We therefore modify the judgment by reversing that partconvicting defendant of reckless endangerment in the first degree and by dismissingcount three of the indictment.
By failing to renew his motion for a trial order of dismissal after presenting evidence,defendant failed to preserve for our review his contention that the evidence is legallyinsufficient (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). In any event, that contention is without merit. The evidence is legallysufficient to establish that defendant was the perpetrator (see People v McLain, 80 AD3d992, 996 [2011], lv denied 16 NY3d 897 [2011]). The evidence establishedthat defendant's two-month-old child sustained broken arms, legs, and ribs that were invarious stages of healing, and a fracture of the skull that had been recently inflicted. Thechild's mother testified that she observed defendant strike the child in the head threetimes with a closed fist the night before the child was treated at the hospital. Theevidence further established that, with the exception of one evening approximately twoweeks prior to the child being treated at the hospital, defendant and the child's motherwere the only caretakers of the child. Contrary to defendant's contention, the mother'stestimony was not incredible as a matter of law. "Testimony will be deemed incredible asa matter of law only where it is 'manifestly untrue, physically impossible, contrary toexperience, or self-contradictory' " (People v Smith, 73 AD3d 1469, 1470 [2010], lvdenied 15 NY3d 778 [2010]), and that is not the case here. With respect to theconviction of assault in the first degree, the evidence is legally sufficient to establish thatthere was a grave risk of death to the child as a result of defendant's conduct and that thechild sustained a serious physical injury (see Penal Law § 120.10[3]; see generally People v Borst, 256 AD2d 1168, 1168 [1998], lv denied93 NY2d 871 [1999]). A radiologist testified that the child sustained a diffuse axialinjury to the brain, which carried a high risk for coma and death. Viewing the evidence inlight of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). "[I]ssues of credibility, aswell as the weight to be accorded to the evidence presented, are primarily questions to bedetermined by the jury" (Peoplev Witherspoon, 66 AD3d 1456, 1457 [2009], lv denied 13 NY3d 942[2010]), and we see no basis for disturbing the jury's credibility determinations in thiscase.
Defendant failed to preserve for our review his contention that the indictment wasfacially duplicitous (People vBecoats, 17 NY3d 643, 650-651 [2011], cert denied 566 US &mdash,132 S Ct 1970 [2012]), or rendered duplicitous by the trial testimony (see People v Allen, 24 NY3d441, 449-450 [2014]), and we decline to exercise our power to address it as a matterof discretion in the interest of justice (see CPL 470.15 [6] [a]). We rejectdefendant's contention that County Court erred in admitting evidence of prior acts ofabuse by defendant against the child's mother. The testimony of the child's mother wasadmissible to show the mother's state of mind, i.e., to explain why she did not call thepolice sooner when she noticed injuries on the child (see People v Justice, 99 AD3d 1213, 1215 [2012], lvdenied 20 NY3d 1012 [2013]; see also People v Bradford, 118 AD3d 1254, 1256 [2014],lv denied 24 NY3d 1082 [2014]; People v Long, 96 AD3d 1492, 1493 [2012], lv denied19 NY3d 1027 [2012]). We conclude that the probative value of that testimonyoutweighed any prejudice to defendant, and that any prejudice to defendant was alsominimized by the court's limiting instructions (see generally People v Carson, 4 AD3d 805, 806 [2004],lv denied 2 NY3d 797 [2004]).
We reject defendant's contention that he was denied effective assistance of counsel.Inasmuch as we have concluded that the evidence is legally sufficient, defense counsel'sfailure to renew the motion for a trial order of dismissal does not constitute ineffectiveassistance (see People vWashington, 60 AD3d 1454, 1455 [2009], lv denied 12 NY3d 922[2009]). Defense counsel's failure to move to dismiss count one of the indictment asrendered duplicitous by the trial testimony also does not constitute ineffective assistance."A single error may qualify as ineffective assistance, but only when the error issufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial"(People v Caban, 5 NY3d143, 152 [2005]). Here, had defense counsel objected during the trial, "[a]nyuncertainty could have easily been remedied" through a jury charge (Allen, 24NY3d at 449), and defense counsel may have chosen to remain silent because defendantmay have "prefer[red] to face one count (and thus one conviction) rather than several"(Becoats, 17 NY3d at 651). Defendant's challenges to defense counsel'scross-examination of the medical witnesses and failure to make certain objections duringthe prosecutor's direct examination of the child's mother constitute mere disagreementswith matters of strategy that do not rise to the level of ineffective assistance (see People v Ocasio, 81 AD3d1469, 1469-1470 [2011], lv denied 16 NY3d 898 [2011], cert denied565 US 910 [2011]). To the extent that defendant contends that counsel was ineffectivein failing to call a particular witness, that contention involves matters outside the recordon appeal and must be raised by way of a motion pursuant to CPL article 440 (seeid. at 1470). Defense counsel was not ineffective for failing to request acircumstantial evidence charge because such a charge is required only where theevidence against defendant is wholly circumstantial (see People v Slade, 133 AD3d 1203, 1207 [2015], lvdenied 26 NY3d 1150 [2016]), which is not the case here (see People v Geddes, 49 AD3d1255, 1256-1257 [2008], lv denied 10 NY3d 863 [2008]). We conclude,with respect to all of defendant's claims concerning the alleged ineffective assistance ofcounsel, that the evidence, the law, and the circumstances of this case, viewed in totalityand as of the time of representation, establish that defendant received meaningfulrepresentation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant's contention that the grand jury proceeding was defective because theprosecutor engaged in misconduct by eliciting false testimony is without merit. "Uponour review of the grand jury proceeding, we conclude that [t]here is no indication that thePeople knowingly or deliberately presented false testimony before the [g]rand [j]ury, andthus there is no basis for finding that the integrity of the [g]rand [j]ury proceeding wasimpaired . . . by the alleged false testimony" (People v Bean, 66 AD3d1386, 1386 [2009], lv denied 14 NY3d 769 [2010] [internal quotation marksomitted]). Defendant's further contention that the grand jury proceeding was defectivebecause he appeared before the grand jury in shackles and jail attire is not preserved forour review (see People vGriggs, 27 NY3d 602, 605-606 [2016], rearg denied 28 NY3d 957[2016]), and we decline to exercise our power to review it as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Defendant also failed to preserve forour review his contention that the court increased the sentence because he chose to asserthis right to a trial rather than to accept a plea bargain (see People v Flinn, 98 AD3d 1262, 1263-1264 [2012],affd 22 NY3d 599 [2014], rearg denied 23 NY3d 940 [2014]). In anyevent, that contention is without merit (see id.). " '[T]he mere fact that asentence imposed after trial is greater than that offered in connection with pleanegotiations is not proof that defendant was punished for asserting his right totrial' " (People vChappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]).Further, the record does not disclose any vindictiveness on the part of the court (see People v Jackson, 94 AD3d1559, 1561 [2012], lv denied 19 NY3d 1026 [2012]).
The certificate of conviction incorrectly reflects that defendant was sentenced as asecond felony offender, and it must therefore be amended to reflect that he was sentencedas a second violent felony offender (see People v Dombrowski, 94 AD3d 1416, 1417 [2012],lv denied 19 NY3d 959 [2012]). We have considered defendant's remainingcontentions and conclude that they are without merit. Present—Centra, J.P.,Peradotto, Lindley, NeMoyer and Scudder, JJ.