| People v Coleman |
| 2017 NY Slip Op 05124 [151 AD3d 1385] |
| June 22, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AshylaunColeman, Appellant. |
Cliff Gordon, Monticello, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered July 11,2014 in Schenectady County, upon a verdict convicting defendant of the crimes of attemptedgang assault in the first degree and attempted assault in the first degree.
In September 2013, defendant, along with three other individuals, attacked the victim in themiddle of the street. Defendant was arrested and charged by indictment with one count of gangassault in the first degree and two counts of assault in the first degree.[FN*] Following a jury trial, defendant was found notguilty on each of the three counts, but was convicted of two lesser included offenses, attemptedgang assault in the first degree and attempted assault in the first degree, both class C violentfelonies. Defendant was sentenced as a second felony offender to a prison term of 12 yearsfollowed by five years of postrelease supervision on each count, with the sentences to be servedconcurrently. Defendant appeals.
[*2] We affirm.Defendant first contends that the verdict is against the weight of the evidence. Specifically, heargues that the evidence did not support a finding of intent to cause serious physical injury. Inreviewing whether a conviction is against the weight of the evidence, we first determine whethera different verdict would have been reasonable and, if so, then, "like the trier of fact below, [we]weigh the relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495[1987] [internal quotation marks and citations omitted]; accord People v Lawrence, 141 AD3d 828, 829 [2016], lvdenied 28 NY3d 1073 [2016]). In this review, "we necessarily consider whether all of theelements of the charged crimes were proven beyond a reasonable doubt" (People v Thorpe, 141 AD3d 927,928 [2016], lv denied 28 NY3d 1031 [2016]; see People v Reeves, 124 AD3d 1068, 1068 [2015], lvdenied 25 NY3d 1076 [2015]).
As is relevant here, a conviction for gang assault in the first degree requires "intent to causeserious physical injury to another person and when aided by two or more other persons actuallypresent" (Penal Law § 120.07). As charged in the indictment, assault in the firstdegree has the same element of intent to cause serious physical injury and, as relevant here, "bymeans of a deadly weapon or a dangerous instrument" (Penal Law § 120.10 [1]). Tosupport a conviction of the crime of attempted gang assault in the first degree and attemptedassault in the first degree, the People had to demonstrate that defendant "engage[d] in conductwhich tends to effect the commission of such crime" (Penal Law § 110.00). Here,we are concerned with the attempt to commit the crimes and, therefore, only address the elementof defendant's intent to cause serious physical injury, and not whether such injury actuallyresulted (compare People vArmstrong, 125 AD3d 1493, 1494-1495 [2015], lv denied 25 NY3d 1069[2015]). "[C]riminal intent may be inferred from the totality of the circumstances" (People v Madore, 145 AD3d 1440,1442 [2016], lv denied 29 NY3d 1034 [May 25, 2017]; see People v Mike, 283 AD2d 989 [2001], lvdenied 96 NY2d 904 [2001]). "Intent may also be inferred from the natural and probableconsequences of defendant's conduct" (People v Madore, 145 AD3d at 1442 [citationomitted]; see People v Roman, 13AD3d 1115, 1116 [2004], lv denied 4 NY3d 802 [2005]).
Detective Eric Clifford testified that, during his patrol duties on the day in question, heobserved a group of individuals "stomping on top of somebody" in the street and that herecognized defendant as one of the individuals involved. A surveillance camera captured theincident and a recording from that camera was played at trial. The recording shows defendantrepeatedly raising his leg and stomping on the victim with his heavy work boots as the victim laydefenseless on the ground. Photographs of the boots were admitted into evidence along withphotographs of the victim's injuries, which show a laceration above the victim's right eye andabrasions about his face. The eyewitness account by Clifford, the video recording of the incident,medical testimony of the responders and the emergency room personnel, and the photographs ofthe victim's injuries clearly support the jury's conclusion that defendant intended to cause seriousphysical injury to the victim (see Peoplev Chowdhury, 22 AD3d 596, 597 [2005], lv denied 6 NY3d 753 [2005]; People v Mahoney, 6 AD3d 1104,1104 [2004], lv denied 3 NY3d 660 [2004]). The evidence also supported the conclusionthat two or more persons were present and that the assault involved a dangerous instrument, i.e.,the "boots or shoes worn while kicking [the] victim" (People v Hill, 130 AD3d 1305, 1306 [2015] [internal quotationmarks, brackets and citations omitted], lv denied 27 NY3d 999 [2016]; see People v Ingram, 95 AD3d1376, 1377 [2012], lv denied 19 NY3d 974 [2012]). While a different verdict wouldnot have been unreasonable, "viewing the foregoing evidence in a neutral light and accordingdeference to 'the jury's unique opportunity to view the witnesses, hear the testimony and observedemeanor' " (People v Thorpe, 141 AD3d at 930-931, quoting People v Lanier, 130 AD3d 1310,1311 [2015], lv denied 26 NY3d 1009 [2015]), we cannot say that the jury "failed to givethe evidence the [*3]weight it should be accorded" (People vBleakley, 69 NY2d at 495; seePeople v Gibson, 118 AD3d 1157, 1159 [2014], lv denied 23 NY3d 1062[2014]).
Next we address defendant's request that we review documents subpoenaed from the City ofSchenectady Police Department to determine whether they should have been disclosed todefendant as Brady material (see Brady v Maryland, 373 US 83, 87-88 [1963]).Upon our own in camera examination, we agree with Supreme Court's determination thatdisclosure to defendant was not required. Although the documents pertained to an ongoingSchenectady Police Department internal affairs investigation in which defendant is involved, theycontain no exculpatory material relative to the present matter, the officers named in theinvestigation did not testify at trial, and the documents would not have changed the result of theproceeding (see People v Fuentes,12 NY3d 259, 263-264 [2009]).
We next turn to defendant's contention that Supreme Court abused its discretion in admittinginto evidence a recording of Clifford's initial 911 radio call to the police dispatcher. SupremeCourt found, after listening to the recording, that it was an excited utterance, as well as thepresent sense impression of the officer. The court further found that it did not constitutebolstering and admitted the recording into evidence based on these exceptions to the hearsay rule."[A] 911 tape is hearsay, as an out-of-court statement admitted for the truth of the matterasserted" (People v Buie, 86 NY2d 501, 505 [1995]). Assuming, without deciding, thatSupreme Court erred in admitting the 911 tape under the excited utterance exception, it wasnevertheless properly admitted under the present sense impression exception, and, thus, anyperceived error was harmless, especially given the otherwise overwhelming evidence ofdefendant's guilt. Contrary to defendant's assertion, the present sense impression exception to thehearsay rule "does not require a showing of the declarant's unavailability as a sine quanon to admissibility" (id. at 506).
We also find no abuse of discretion in Supreme Court's refusal to give defendant's requestedmissing witness charge. Such a charge would have allowed the jury to draw an unfavorableinference toward the People based on the People's failure to call the victim as a witness (seePeople v Savinon, 100 NY2d 192, 196 [2003]). "To warrant a missing witness charge, theproponent of the charge must establish that (1) the witness's knowledge is material to the trial; (2)the witness is expected to give noncumulative testimony; (3) the witness is under the control ofthe party against whom the charge is sought, so that the witness would be expected to testify inthat party's favor; and (4) the witness is available to that party" (People v Brown, 139 AD3d 1178,1179 [2016] [internal quotation marks and citations omitted]). Clifford detailed the effortsutilized to contact the victim, including requesting the Schenectady Police Department patrolunits to look for him, checking known addresses and contacting confidential informants, theSchenectady County Sheriff's Department, the State Police and the New York City PoliceDepartment. Clifford testified that, despite the fact that there were outstanding warrants for thevictim in Schenectady County and in New York City, he had been unable to locate the victim.Supreme Court found that, based on Clifford's testimony, the victim was unavailable to thePeople and not under the People's control. Given the existence of the outstanding warrants for thevictim, and the diligent efforts portrayed by Clifford to locate him (see People v Gunn, 144 AD3d1193, 1195 [2016], lv denied 28 NY3d 1145 [2017]), the refusal to give the missingwitness charge was not an abuse of discretion and will not be disturbed.
Lastly, we reject defendant's contention that his sentence was harsh and excessive.Specifically, defendant contends that, in light of its remarks at the time of sentencing, SupremeCourt improperly considered the injury to the victim's leg in imposing sentence, and itoverlooked the fact that defendant was acquitted of the charge of assault in the first degree as[*4]alleged in count 3 of the indictment involving that injury tothe victim. However, our review of the sentencing minutes reveals no suggestion that the court'scomment formed the only basis for the sentence imposed (see People v Lanfair, 18 AD3dat 1034). Given the violent nature of defendant's participation in the attack, his lengthy priorcriminal history and his inability to comply with supervision (see People v Brown, 96 AD3d 1236, 1237 [2012]), we find noextraordinary circumstances or abuse of discretion requiring a modification of the sentence,which was less than the possible maximum (see Penal Law §§ 110.05[4]; 70.02 [1] [b]; 70.06 [6] [b]; 70.45 [1]; People v Cook, 112 AD3d 1065, 1066 [2013]; People v Lee, 51 AD3d 1217,1218 [2008]).
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Count 2 of the indictmentcharged assault in the first degree by the use of a dangerous instrument consisting of shoes orboots to stomp and kick the victim. Count 3 charged the crime by the use of a dangerousinstrument consisting of a knife or other sharp instrument.