| People v Conklin |
| 2018 NY Slip Op 01213 [158 AD3d 973] |
| February 22, 2018 |
| Appellate Division, Third Department |
[*1](February 22, 2018)
| The People of the State of New York,Respondent, v Mark Conklin, Appellant. |
Jack H. Weiner, Chatham, for appellant.
D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered November 18, 2014, upon a verdict convicting defendant of the crimes of burglary inthe second degree, attempted kidnapping in the second degree, unauthorized use of a vehicle inthe first degree and assault in the third degree.
Defendant and the victim had previously been involved in an intimate relationshipoccasioned by episodes of verbal and physical abuse. On February 27, 2014, the victim, who hadobtained an order of protection against defendant, returned home from work to find defendantinside her residence. Defendant immediately "came charging" at the victim and, after grabbingthe cell phone out of her hand, proceeded to push her against the refrigerator and punch herrepeatedly in her head, all while asking "who [she] was f . . . ing." Threatening tokill her, defendant then began choking the victim, slammed her against the kitchen table andstruck her numerous additional times in the head. The victim was eventually escorted bydefendant at knife point out of the home and into the front passenger seat of her car. Asdefendant walked around the front of the vehicle, the victim was able to escape and flee to aneighbor's house, where she summoned aid from police. Defendant was subsequently chargedwith various crimes stemming from the attack and, following a jury trial, was convicted ofburglary in the second degree, attempted kidnapping in the second degree, unauthorized use of avehicle in the first degree and assault in the third degree. County Court sentenced him to anaggregate prison term of 15 years to be followed by five years of postrelease supervision. He nowappeals.
[*2] Defendant initially contends that his convictions arenot supported by legally sufficient evidence. Inasmuch as defendant's motion for a trial order ofdismissal was expressly limited to the count of the indictment charging him with assault in thethird degree, his challenges to the legal sufficiency of the evidence supporting his remainingconvictions are unpreserved for our review (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Keener, 152 AD3d 1073,1074 [2017]; People v Davis, 133AD3d 911, 912 [2015]). Were we to consider those issues, we would find that, when viewedin the light most favorable to the People (see People v Denson, 26 NY3d 179, 188 [2015]), the evidenceprovided a valid line of reasoning and permissible inferences from which a rational jury couldfind the elements of the crimes proved beyond a reasonable doubt (see Penal Law§§ 135.20, 140.25 [2]; 165.08; see generally People v Danielson, 9 NY3d 342, 349 [2007]).
With regard to his conviction for assault in the third degree, defendant claims that theevidence fails to establish that the victim suffered a physical injury as a result of the attack.Physical injury is statutorily defined as "impairment of physical condition or substantial pain"(Penal Law § 10.00 [9]). To meet the statutory threshold, the pain "must be morethan slight or trivial but need not be severe or intense" (People v Johnson, 150 AD3d 1390, 1392 [2017] [internal quotationmarks and citation omitted], lv denied 29 NY3d 1128 [2017]; see People v Chiddick, 8 NY3d445, 447 [2007]; People vDove, 86 AD3d 715, 716 [2011], lv denied 17 NY3d 903 [2011]). "A variety offactors are relevant in determining whether physical injury has been established, including theinjury viewed objectively, the victim's subjective description of the injury and [his or] her pain,and whether the victim sought medical treatment" (People v Fisher, 89 AD3d 1135, 1136 [2011] [internal quotationmarks and citations omitted], lv denied 18 NY3d 883 [2012]; see People v Hicks, 128 AD3d1221, 1222 [2015], lv denied 26 NY3d 930 [2015]).
The victim testified that defendant punched her multiple times in the face and head, chokedher, slammed her into a refrigerator and shoved her against a table with such force as to cause thetable to slide backwards. She sought treatment at the emergency room of a local hospital thatsame day, where she was assessed by medical professionals and given pain medication. Thevictim described the various bruises that she sustained, explained that her "whole head wasswollen" as a result of the attack and related the pain that she experienced during the week and ahalf following the altercation. Photographs depicting the victim's injuries were also admitted intoevidence. In light of this proof, there was a legally sufficient basis for the jury to have concludedthat the victim sustained a physical injury within the meaning of Penal Law § 10.00(9) (see People v Hicks, 128 AD3d at 1222; People v Dove, 86 AD3d at 717; People v Jones, 79 AD3d 1244,1245-1246 [2010], lv denied 16 NY3d 832 [2011]; People v Foster, 52 AD3d 957, 959-960 [2008], lv denied11 NY3d 788 [2008]).
Defendant's challenge to County Court's Molineux ruling is similarly lacking inmerit. "Evidence of prior uncharged crimes or prior bad acts may not be admitted solely todemonstrate a defendant's bad character or criminal propensity, but may be admissible if linkedto a specific material issue or fact relating to the crimes charged, and if their probative valueoutweighs their prejudicial impact" (People v Morgan, 149 AD3d 1148, 1148-1149 [2017] [internalquotation marks, ellipsis, brackets and citations omitted]; see People v Leonard, 29 NY3d 1, 6-7 [2017]). In cases involvingdomestic violence, such as this, "prior bad acts are more likely to be relevant and probativebecause the aggression and bad acts are focused on one particular person, demonstrating thedefendant's intent, motive, identity and absence of mistake or accident" (People v Womack, 143 AD3d1171, 1173 [2016] [internal quotation marks and citations omitted], lv denied 28NY3d 1151 [2017]; see People vCox, 129 AD3d 1210, 1213 [2015], lv denied 26 NY3d 966 [2015]). Here, theevidence regarding defendant's prior abusive conduct [*3]towardthe victim was both relevant and material to the issues of motive, intent and the absence ofaccident, and also provided necessary background information concerning the tumultuous natureof their relationship and the setting in which these crimes occurred (see People vWomack, 143 AD3d at 1173-1174; People v Pham, 118 AD3d 1159, 1161 [2014], lv denied 24NY3d 1087 [2014]; People vBurkett, 101 AD3d 1468, 1470-1471 [2012], lv denied 20 NY3d 1096 [2013];People v Timmons, 54 AD3d883, 885 [2008], lv denied 12 NY3d 822 [2009]). In allowing some, but not all, ofthe proffered evidence, County Court properly balanced the probative value of such evidenceagainst its potential for prejudice (seePeople v Babcock, 152 AD3d 962, 964-965 [2017], lv denied 30 NY3d 947[2017]; People v Morgan, 149 AD3d at 1149; People v Burkett, 101 AD3d at1471; compare People v Elmy, 117AD3d 1183, 1186-1187 [2014]; People v Westerling, 48 AD3d 965, 967-968 [2008]). Moreover,the court issued appropriate limiting instructions concerning the purpose for which the jury couldconsider the subject evidence, thereby limiting its prejudicial effect (see People vBabcock, 152 AD3d at 965; People v Womack, 143 AD3d at 1174; People vBurkett, 101 AD3d at 1471).
Finally, given the serious and violent nature of these offenses, defendant's pattern ofdomestic violence towards the victim and his violation of orders of protection designed to protecther, we discern neither an abuse of discretion nor any extraordinary circumstances warranting areduction of the sentence in the interest of justice (see People v Pham, 118 AD3d at 1163;People v Burkett, 101 AD3d at 1473; People v Gorham, 17 AD3d 858, 861 [2005]). Defendant'sremaining contentions are unpreserved for our review and, in any event, without merit.
Garry, P.J., McCarthy, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.