| People v Murrell |
| 2017 NY Slip Op 01733 [148 AD3d 1296] |
| March 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Charles R.Murrell, Appellant. |
Hinman, Howard & Kattell, LLP, East Greenbush (Linda B. Johnson of counsel), forappellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered August 1, 2014, convicting defendant following a nonjury trial of the crimes of petitlarceny, assault in the third degree, unlawful imprisonment in the second degree and endangeringthe welfare of a child.
Defendant was charged in a five-count indictment with burglary in the first degree, petitlarceny, assault in the third degree, unlawful imprisonment in the second degree and endangeringthe welfare of a child. The charges stemmed from allegations that defendant physically assaultedhis former paramour (hereinafter victim 1), in the presence of the eight-year-old daughter(hereinafter victim 2) of victim 1's friend, stole money from victim 1 and unlawfully restrainedboth victims in a Jeep motor vehicle belonging to the friend. Following a bench trial, defendantwas convicted on all charges, except the burglary charge. County Court sentenced him to oneyear in jail on the misdemeanor convictions, with the sentences on the assault and the unlawfulimprisonment convictions to run consecutively.
We are unpersuaded by defendant's contention that the convictions of unlawful imprisonmentin the second degree and endangering the welfare of a child are against the weight of theevidence. For a weight of evidence review, where "a different finding would not have beenunreasonable . . . [we] must, like the trier of fact below, weigh the relative probativeforce [*2]of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Bleakley, 69NY2d 490, 495 [1987] [internal quotation marks omitted]; see People v Lane, 7 NY3d 888, 890 [2006]). For a conviction ofunlawful imprisonment in the second degree, the People were required to prove that defendantrestrained another person (see Penal Law § 135.05; People v Ward, 141 AD3d 853,854 [2016]). The endangering the welfare of a child charge "required the People to prove thatdefendant knowingly act[ed] in a manner likely to be injurious to the physical, mental, or moralwelfare of a child less than 17 years of age" (People v Harris, 50 AD3d 1387, 1389 [2008] [internal quotationmarks omitted]; see Penal Law § 260.10 [1]).
The record reflects that during the evening of September 25, 2013, one day after defendantwas released from custody, he entered victim 1's apartment, smashed her phone, rifled throughher purse for cash and then assaulted her in the presence of victim 2, who was sitting within 10feet of the altercation. He then demanded that both victims return to the Jeep, directing victim 1to "drive him to the hills, that he was going to show [her] how real it was going to get"—astatement she understandably interpreted as a threat. After driving a short distance, victim 1abruptly stopped the Jeep and both victims exited the vehicle and sought refuge in a nearby bar.Defendant drove away with the vehicle. In her unsworn testimony, victim 2 confirmed that sheobserved defendant hit victim 1 in the apartment and that victim 1 was bleeding (see CPL60.20 [2]). After meeting with victim 1 at the hospital, the responding police officer went to herapartment and observed droplets of blood, the contents of an empty purse on the couch and twobroken phones—a scene consistent with victim 1's explanation of the incident. For hispart, defendant acknowledged striking victim 1 while they were in the apartment, explaining thatshe hit him first and that he was defending himself. He also testified they would drive "to thehills" to calm down and acknowledged getting into a physical altercation with victim 1 inside ofthe Jeep.
Giving deference to County Court's assessment of witness credibility, and viewing theevidence in a neutral light, we find that the weight of the evidence amply supports both of thechallenged convictions. Considering the assault and the ensuing threat, as well as victim 1'sactions in escaping from the Jeep, the People established that defendant restricted victim 1'smovement by intimidation and without consent (see People v Ward, 141 AD3d at857-858; People v Haardt, 129AD3d 1322, 1323-1324 [2015]). Victim 2 indicated that she was scared and started to cryafter witnessing defendant assault victim 1 in the apartment. Notably, the endangering chargedoes not require the child to manifest symptoms of actual harm, and the sequence of events asdescribed created a likelihood of harm to victim 2 of which defendant was clearly aware(see Penal Law § 260.10 [1]; People v Johnson, 95 NY2d 368,371-373 [2000]).
We further reject defendant's argument that his trial counsel was ineffective, primarily forfailing to mount a viable defense against the various misdemeanor charges. The defenseunquestionably focused on the most serious charge of burglary, which carried a maximum prisonsentence of 25 years (see Penal Law §§ 70.00 [2] [b]; 140.30 [2]).Through the testimony of defendant and numerous witnesses, defendant was able to convinceCounty Court that he was authorized to enter into the apartment, and he was acquitted on theburglary charge. Given that convictions on the remaining misdemeanor charges were not unlikelyin view of the evidence presented, defense counsel's apparent strategic decision to focus on thefelony charge was not ineffective (seePeople v Ambers, 26 NY3d 313, 319-320 [2015]). Nor do we overlook defendant'stestimony that he acted in self-defense relative to the assault and the testimony of defensewitness, Jamie Griffin, who testified that defendant and victim 1 entered and left the apartmentbuilding together, without incident. Defendant's counsel also made a cogent argument againstconsecutive sentencing on the misdemeanor convictions. While counsel's representation was byno means flawless, that is not the standard (see People v Thiel, 134 AD3d 1237, 1240[*3][2015], lv denied 27 NY3d 1156 [2016]). Rather, theconstitutional standard is satisfied "[s]o long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that the attorneyprovided meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]). Weconclude that this standard was satisfied here.
Finally, insofar as defendant takes issue with the consecutive sentencing, the Peoplerepresent that he has been released from custody without conditions, rendering this challengemoot (see People v Carter, 46 AD3d1335, 1336 [2007], lv denied 10 NY3d 932 [2008]).
McCarthy, J.P., Garry, Rose and Aarons, JJ., concur. Ordered that the judgment isaffirmed.