| People v Williams |
| 2018 NY Slip Op 03392 [161 AD3d 1296] |
| May 10, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Talisha V. Williams, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (William D. VanDerlinder of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered August 24, 2015, upon a verdict convicting defendant of the crime of assault in thesecond degree.
Defendant was charged in a two-count indictment with attempted assault in the first degreeand assault in the second degree. Following a trial, the jury found defendant guilty of assault inthe second degree. County Court sentenced her, as a second felony offender, to five years inprison with five years of postrelease supervision. Defendant appeals.
Defendant did not exercise a for-cause or peremptory challenge to juror No. 9 or otherwiseobject to County Court's questioning of her or her being seated as a juror. Thus, defendant'scurrent arguments concerning that juror are not preserved for our review (see People v Colburn, 123 AD3d1292, 1295 [2014], lv denied 25 NY3d 950 [2015]).
The jury's verdict, including its rejection of defendant's justification defense, was not againstthe weight of the evidence. Given that another verdict would not have been unreasonable, we"must weigh the relative probative force of conflicting testimony and the relative strength of theconflicting inferences that may be drawn from the testimony while viewing the evidence in aneutral light and giving deference to the jury's credibility assessments" (People v Johnson, 91 AD3d 1194,1196 [2012] [internal quotation marks and citations omitted], lv denied 18 NY3d 995[2012]; see People v Green, 121AD3d 1294, 1294-1295 [2014], lv [*2]denied 25NY3d 1164 [2015]). As relevant here, "[a] person is guilty of assault in the second degree when. . . [w]ith intent to cause physical injury to another person, he [or she] causes suchinjury to such person . . . by means of a deadly weapon or a dangerous instrument"(Penal Law § 120.05 [2]). Regarding the defense of justification, unless thedefendant is the initial aggressor, he or she may "use physical force upon another person whenand to the extent he or she reasonably believes such to be necessary to defend himself, herself ora third person from what he or she reasonably believes to be the use or imminent use of unlawfulphysical force by such other person" (Penal Law § 35.15 [1]). However, "[a] personmay not use deadly physical force upon another person" unless he or she "reasonably believesthat such other person is using or about to use deadly physical force" (Penal Law§ 35.15 [2] [a]). When the defense of justification is asserted, the People mustprove beyond a reasonable doubt that the defendant's actions were not justified (see PenalLaw § 25.00 [1]; People vHamilton, 133 AD3d 1090, 1091 [2015]).
It is undisputed that defendant struck the victim in the face with an object, causing an injurythat required 21 sutures. Defendant testified that she was scared of the victim, who hadthreatened her in the past. According to defendant, she was leaving a party after the host orderedeveryone out and locked the door. Defendant had to walk past the victim, who was standing atthe bottom of the porch steps. The witnesses agreed that defendant descended the steps, wasstanding face to face with the victim and the two had a loud verbal disagreement, although thereis a discrepancy as to who started that argument. Defendant testified that the victim's friendsgathered around and appeared to be preparing to fight. The victim poked and pushed defendant,while holding a beer bottle in her hand. Defendant then swung her hand, in which she held a cellphone and a purse with decorative chains on it, striking the victim in the face. Others held thevictim back as defendant ran away. According to defendant, the glass face of her cell phoneallegedly shattered when it hit the victim's face. On cross-examination, defendant admitted thatshe was never threatened with a dangerous instrument.
The victim and her daughter described a different version of events. According to them,defendant's cousin yelled at the victim that defendant wanted to fight. Defendant then came offthe porch and stood very close to the victim, where the two began arguing. The victim and herdaughter testified that the victim had no weapons and only a purse in her hands. The victim'sdaughter testified that she saw a knife with a brown or black handle in defendant's hand. Thevictim testified that she saw something black in defendant's hand, but she could not tell if it was aknife or a razor. Similar to defendant, these witnesses testified that defendant struck the victim inthe face, then ran away while others held the victim back. A physician who treated the victim'sinjury testified that the wound on her face was a deep, "clear, sharp incision," consistent withhaving been caused by a sharp object.
It is undisputed that defendant struck the victim, and the evidence supports the conclusionthat her deep wound constituted a physical injury. The jury could certainly have inferred thatdefendant intended to cause such injury. We reject defendant's assertion that the victim'sdaughter was incredible as a matter of law. Accepting the jury's credibility determinations, it ispossible that the jury believed that the victim had no weapons and defendant cut the victim witha knife, rather than the injury being caused by the glass face of a cell phone that was broken uponimpact. It was reasonable for the jury to have determined, under those circumstances, thatdefendant was not justified in using deadly physical force. Accordingly, the jury's verdict,including its rejection of the justification defense, was not against the weight of the evidence (see People v Harden, 134 AD3d1160, 1163-1164 [2015], lv denied 27 NY3d 1133 [2016]; People vHamilton, 133 AD3d at 1091-1092; People v Green, 121 AD3d at1295).
[*3] Clark, Mulvey, Aarons and Rumsey, JJ.,concur. Ordered that the judgment is affirmed.