| People v Sands |
| 2018 NY Slip Op 00362 [157 AD3d 1136] |
| January 18, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v ShaunSands, Appellant. |
Mark Diamond, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered September 25, 2015, upon a verdict convicting defendant of the crime of assault inthe second degree.
Defendant, an inmate at Washington Correctional Facility, was charged in a multicountindictment stemming from an altercation with a correction officer (hereinafter the victim).Following a jury trial, defendant was convicted of assault in the second degree. County Courtthereafter sentenced defendant, as a second felony offender, to six years in prison followed byfive years of postrelease supervision. Defendant appeals. We affirm.
Defendant argues that the verdict was not supported by legally sufficient evidence and that itwas against the weight of the evidence. As relevant here, assault in the second degree requiresthat the People prove that defendant, with the intent to prevent a peace officer from performing alawful duty, caused physical injury to such peace officer (see Penal Law§ 120.05 [3]). At trial, the victim testified that doors to inmate dormitories are keptlocked and, if an inmate wishes to enter a dormitory, the inmate presses a buzzer. On the day inquestion, defendant initially pressed the buzzer once and then, for a second time, held the buzzerdown for an extended period. The victim responded and told defendant to release the buzzer. Thevictim stated that, as he counseled defendant on how to properly use the buzzer to gain entry intothe dormitory, defendant "launched towards [him], . . . grabbed [his] chest, uniform. . . and shoved [him] against the door." The victim gave defendant an order to stopresisting, but defendant "rammed [him] again." While the victim was able to pin defendant on theground, defendant [*2]grabbed the victim's throat. The victimactivated his personal alarm system to call out for assistance. Other correction officers arrivedand helped subdue defendant. The victim testified that, after the incident ended, he "was in somuch pain" and received medical treatment at a hospital. The victim subsequently underwentshoulder surgery and was seeing a chiropractor.
Viewing this evidence in a light favorable to the People, we conclude that the verdict wassupported by legally sufficient evidence (see People v Smith, 89 AD3d 1148, 1148-1149 [2011], lvdenied 19 NY3d 968 [2012]). While defendant contends that evidence was lacking todemonstrate that he intended to injure the victim, Penal Law § 120.05 (3) "makesclear that no intent to cause [physical] injury need be proven" (People v Harmon, 264AD2d 941, 942 [1999]). Nor do we find merit in defendant's argument that there was insufficientevidence establishing that he caused a physical injury to the victim (see People v Iovino, 149 AD3d1350, 1352 [2017], lv denied 30 NY3d 950 [2017]; People v Holloway, 261AD2d 658, 660 [1999], lv denied 93 NY2d 972 [1999]). Furthermore, when viewing theevidence in a neutral light, we conclude that the verdict was not against the weight of theevidence (see People v Davis, 105AD3d 1095, 1096 [2013], lv denied 21 NY3d 1003 [2013]). To the extent thatdefendant calls into question the veracity of the victim's testimony, we accord deference to thejury's credibility determinations (seePeople v Novak, 148 AD3d 1352, 1356 [2017], lv denied 29 NY3d 1084 [2017];People v Garcia, 141 AD3d861, 863 [2016], lv denied 28 NY3d 929 [2016]).
We reject defendant's argument that he was entitled to a justification charge. "Although therecord must be considered in the light most favorable to the accused, a court need not chargejustification if no reasonable view of the evidence establishes the elements of the defense"(People v Reynoso, 73 NY2d 816, 818 [1988] [citations omitted]; see People v Johnson, 91 AD3d1121, 1122 [2012], lv denied 18 NY3d 959 [2012]). Because no reasonable view ofthe evidence reflects that the victim was the initial aggressor, even when considered in a lightfavorable to defendant, County Court properly denied defendant's request for a justificationcharge (see People v Kerley, 154AD3d 1074, 1075-1076 [2017]; People v Boyd, 97 AD3d 898, 900 [2012], lv denied 20NY3d 1009 [2013]; People v Carter,74 AD3d 1375, 1378 [2010], lv denied 15 NY3d 772 [2010]).
Defendant contends that the verdict was repugnant because he was acquitted of a separatecount of assault in the second degree (see Penal Law § 120.05 [7]). Thiscontention, however, is unpreserved in light of defendant's failure to raise this alleged error priorto the discharge of the jury (see People vRodwell, 122 AD3d 1065, 1068 [2014], lv denied 25 NY3d 1170 [2015]; People v Pearson, 69 AD3d 1226,1227 [2010], lv denied 15 NY3d 755 [2010]). In any event, this claim is without merit(see generally People v Muhammad,17 NY3d 532, 539-540 [2011]). To that end, we disagree with defendant's assertion that hiscounsel was ineffective based upon his counsel's failure to object to the verdict as repugnant (see People v Perry, 154 AD3d1168, 1171-1172 [2017]; People vStroud, 91 AD3d 1026, 1027-1028 [2012]; People v Bachert, 133 AD2d 482,482-483 [1987], lv dismissed 70 NY2d 797 [1987]). Taking into account that defensecounsel made pretrial motions, presented cogent opening and closing statements and attacked thecredibility of the People's witnesses and the fact that defendant was acquitted of certain counts,we find that defendant was not deprived of meaningful representation (see People v Place, 152 AD3d 976,980 [2017]; People v Roach, 119AD3d 1070, 1072-1073 [2014], lv denied 24 NY3d 1221 [2015]; People vDavis, 105 AD3d at 1098).
Finally, defendant argues that he was improperly sentenced as a second felony offenderbecause he was not informed of his right to contest the validity of the factual and legal basis ofthe prior felony. Defendant, however, failed to preserve this issue for our review by not raising anobjection on this ground during sentencing (see People v Melton, 136 AD3d 1069, 1070 [*3][2016], lv denied 27 NY3d 1002 [2016]). Even if preserved,the record demonstrates that County Court substantially complied with CPL 400.21 (3) (see People v Hummel, 127 AD3d1506, 1507 [2015], lv denied 25 NY3d 1202 [2015]).
Garry, P.J., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.