| People v Joyce |
| 2017 NY Slip Op 03637 [150 AD3d 1632] |
| May 5, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v TimothyJoyce, Appellant. |
Bruce R. Bryan, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered October 26, 2015. The judgment convicted defendant, upon a jury verdict, of assault inthe first degree and criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentences imposed for assault in the firstdegree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the seconddegree (§ 265.03 [1] [b]) to determinate terms of imprisonment of 10 years, and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofassault in the first degree (Penal Law § 120.10 [1]) and two counts of criminalpossession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Defendant'scontention that the evidence is legally insufficient to establish that he committed assault in thefirst degree is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995])and, in any event, is without merit (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Defendant's intent to cause serious physical injury may be inferred from the evidencethat he fired a weapon directly at the victim from a close range (see generally People v Brown, 120AD3d 954, 956 [2014], lv denied 24 NY3d 1118 [2015]; People v Marquez, 49 AD3d 451,451 [2008], lv denied 10 NY3d 936 [2008]). The evidence also is legally sufficient toestablish that the victim sustained serious physical injury (see Penal Law§ 10.00 [10]), inasmuch as the victim testified that the shooting resulted in the lossof movement in his arm, which persisted for one year after the incident, as well as the necessityof surgery to repair the arm with a bone graft, metal, and screws (see People v Lake, 301AD2d 432, 433 [2003], lv denied 99 NY2d 656 [2003]; see also People v Andrews, 24 AD3d1184, 1185 [2005]; People vIrwin, 5 AD3d 1122, 1123 [2004], lv denied 3 NY3d 642 [2004]).
Moreover, viewing the evidence in light of the elements of the crimes as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495). Even assuming, arguendo, that a differentverdict would not have been unreasonable, we conclude that, " 'on this record, it cannotbe said that the jury failed to give the evidence the weight it should be accorded' " (People v Lawrence, 141 AD3d1079, 1082 [2016], lv denied 28 NY3d 1029 [2016]). With respect to the charges ofcriminal possession of a weapon in the second degree, we reject defendant's contention that theverdict is against the weight of the evidence on the ground that his possession of the gun wasjustified under a theory of temporary lawful possession (see generally People v Holmes, 129 AD3d 1692, 1694-1695[2015], lv denied 26 NY3d 968 [2015]).
We also reject defendant's contention that Supreme Court erred in precluding defendant fromoffering testimony concerning the actions committed by one of defendant's neighbors prior to theshooting. The neighbor's alleged actions were not relevant to a justification defense inasmuch asthey did not establish any reasonable basis for defendant to believe that the neighbor, or thevictim, would use physical force against defendant or his wife (see generally People vMorgan, 172 AD2d 414, 414 [1991], lv denied 78 NY2d 971 [1991]). Evenassuming, arguendo, that defendant feared the victim because of some past conduct by theneighbor, we conclude that, inasmuch as the alleged confrontations with the neighbor occurredyears prior to this incident, they are too remote in time to be relevant to defendant's justificationdefense (see People v Grady, 40AD3d 1368, 1372-1373 [2007], lv denied 9 NY3d 923 [2007]).
We further reject defendant's contention that the court erred in refusing to instruct the jury onthe defense of justification with respect to the use of nondeadly physical force. Althoughdefendant may have aimed the gun at the victim's raised arm, such action constituted deadlyphysical force regardless of where defendant aimed the weapon inasmuch as defendant fired aloaded weapon at the victim from a close range (see generally People v Magliato, 68NY2d 24, 29-30 [1986]; People vHaynes, 133 AD3d 1238, 1239 [2015], lv denied 27 NY3d 998 [2016]).
Defendant's contention that the court improperly questioned a witness in response to a jurornote is not preserved for our review (see CPL 470.05 [2]; People v Brown, 120 AD3d 1545,1545-1546 [2014], lv denied 24 NY3d 1082 [2014]), and we decline to exercise ourpower to address that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). We reject defendant's contention that the submission of the juror noteduring the testimony of a witness established that the jurors engaged in premature deliberations,inasmuch as there is nothing in the record to indicate that the juror who wrote the note hadengaged in disqualifying conduct.
Finally, we agree with defendant, that, in light of his age, his lack of a prior criminal recordand other mitigating circumstances, the sentence is unduly harsh and severe. As a matter ofdiscretion in the interest of justice, we therefore modify the judgment by reducing the sentencesimposed for assault in the first degree (Penal Law § 120.10 [1]) and for criminalpossession of a weapon in the second degree (§ 265.03 [1] [b]) to determinate termsof imprisonment of 10 years (see CPL 470.15 [6] [b]). Present—Whalen, P.J.,Lindley, NeMoyer, Curran and Troutman, JJ.