| People v Marshall |
| 2018 NY Slip Op 04038 [162 AD3d 1110] |
| June 7, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James D. Marshall, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Tompkins County (Miller, J.),rendered March 10, 2016, upon a verdict convicting defendant of the crimes of assault in the firstdegree, criminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree.
In June 2015, defendant was involved in an altercation with the victim and shot him in theleg. In connection with this incident, defendant was charged by indictment with one count ofassault in the first degree, two counts of criminal possession of a weapon in the second degreeand one count of criminal possession of a weapon in the third degree. Following a jury trial,defendant was convicted as charged. County Court sentenced defendant, as a second violentfelony offender, to an aggregate prison term of 13 years, to be followed by five years ofpostrelease supervision. Defendant appeals.
We reject defendant's contention that the indictment should have been dismissed because thegrand jury proceedings were defective. "[G]rand jury proceedings enjoy a presumption ofregularity which is the challenger's burden to overcome" (People v Nash, 69 AD3d 1113, 1114 [2010], lv denied 15NY3d 754 [2010]; see generally People v Huston, 88 NY2d 400, 409 [1996]). Other thana conclusory assertion, defendant does not elaborate on this point or specify any particular defectin the grand jury proceedings. Defendant therefore failed to show that the indictment should havebeen dismissed on this ground. In any event, our review of [*2]thegrand jury minutes discloses no defect.
Defendant failed to preserve his argument that the evidence was not legally sufficient tosupport the verdict in light of his failure to renew his trial motion to dismiss at the close of allproof (see People v Jackson, 151AD3d 1466, 1468 [2017], lv denied 30 NY3d 950 [2017]; People v Brown, 139 AD3d 1178,1178 [2016]). Defendant, however, also assails the verdict as being against the weight of theevidence and, therefore, we review the evidence as to each element of the crimes for which hewas convicted (see People v Place,152 AD3d 976, 977 [2017], lv denied 30 NY3d 1063 [2017]; People v Brabham, 126 AD3d1040, 1041 [2015], lv denied 25 NY3d 1160 [2015]). Where, as here, a differentoutcome would not have been unreasonable, we "weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks andcitations omitted]; see People vGabriel, 155 AD3d 1438, 1439 [2017]).
At trial, the victim testified that he went to his ex-girlfriend's apartment but she did not lethim inside. The victim called the ex-girlfriend on his cell phone and asked if someone else waswith her, to which the ex-girlfriend responded in the negative. They continued to talk, and theex-girlfriend reiterated that no one else was in her apartment. The ex-girlfriend testified thatdefendant was actually with her but she knew there would be a problem if the victim was awareof defendant's presence. The victim then got a butter knife and tried to pry the window open. Thevictim was unsuccessful and asked the ex-girlfriend to come out, but she refused. The victimremained outside the apartment for about two hours and the ex-girlfriend did not want defendantto leave because she knew the victim would fight him.
The victim testified that, later, defendant and his ex-girlfriend came out of the apartment.The victim stated that defendant had his hand in his jacket as though he was holding something.According to the victim, defendant "smirked" at him and moved. The victim then "just hit him."After doing so, the victim saw that defendant had a gun. They continued to fight and the victimthen realized that he was shot in the leg. The ex-girlfriend stated that the victim kept saying, "Oh,you shot me. Oh, you shot me." The victim was able to pin defendant on the ground and thevictim and the ex-girlfriend both testified that, at this point, defendant was holding a gun. Thevictim then let him off the ground and defendant ran away. The victim was bleeding and heexplained to the police officers who had subsequently arrived what had happened.
Regarding the conviction for assault in the first degree, defendant questions the proof withrespect to the element of intent. Upon reviewing the evidence in a neutral light, however, the jurycould infer from the evidence that defendant possessed the requisite intent to cause seriousphysical injury to the victim (see Penal Law § 120.10 [1]; People v Madore, 145 AD3d 1440,1442 [2016], lv denied 29 NY3d 1034 [2017]; People v Mathews, 134 AD3d 1248, 1250 [2015]; People v Malcolm, 74 AD3d 1483,1484-1485 [2010], lv denied 15 NY3d 954 [2010]). Furthermore, the jury was entitled toreject defendant's testimony that the victim held the gun in his hand and was inadvertently shotduring their fight (see People vGibson, 141 AD3d 1009, 1012 [2016]; People v Morrison, 71 AD3d 1228, 1229-1230 [2010], lvdenied 15 NY3d 754 [2010]; People v Moore, 277 AD2d 596, 597 [2000], lvdenied 96 NY2d 761 [2001]).
Notwithstanding the foregoing, we agree with defendant that the weight of the evidence doesnot support a finding that the victim sustained a serious physical injury. Serious physical injury isdefined as a "physical injury which creates a substantial risk of death, or which causes death orserious and protracted disfigurement, protracted impairment of health or protracted loss [*3]or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]). As to whether the victim sustained a physical injury that created asubstantial risk of death, the victim testified that, following the shooting, he was in "miraculouspain," he underwent two surgeries, his tibia bone was "shattered" and pins were inserted to holdthe bones in place. The pins, however, were removed four months after their insertion, at whichpoint the pain subsided. The victim then wore a cast on his leg for 1
The record evidence also does not support a finding that the victim suffered from a protractedimpairment of health or protracted loss or impairment of the function of a bodily organ (see People v Stewart, 18 NY3d831, 832-833 [2011]; People v Alvarez, 38 AD3d at 934-935; cf. People vGray, 30 AD3d at 772-773; People v Phillip, 279 AD2d 802, 803-804 [2001], lvdenied 96 NY2d 905 [2001]; compare People v Ford, 156 AD3d 1242, 1244-1245 [2017], lvdenied 31 NY3d 1013 [2018]; People v Heyliger, 126 AD3d 1117, 1119 [2015], lv denied25 NY3d 1165 [2015]; People v KhuongDinh Pham, 31 AD3d 962, 965-966 [2006]). By the time of trial, which was less thansix months after the shooting, the victim stated that he had "a little limp," but was nonethelessable to walk. The victim was also undergoing "rehab" but he did not state for how long. Whenasked whether he could continue to play arena football, he merely responded, "Not at this time"and did not state that his injury to his leg prohibited him from playing in the future. Finally, asdiscussed, the victim stated that the pain had subsided once the pins were removed. Accordingly,although the victim's testimony and the photographs show a significant injury immediatelyfollowing the shooting, there was no corresponding proof regarding its long-term effects (seePeople v Alvarez, 38 AD3d at 934).
As to whether the victim sustained a serious and protracted disfigurement, we note that thevictim showed his scar to the jury. There was, however, no contemporaneous description of whatthe jury saw to demonstrate the extent of such scarring, nor can such extent be discerned from thephotographs entered into evidence (seePeople v McKinnon, 15 NY3d 311, 316 [2010]; People v Santos, 151 AD3d 1620, 1620-1621 [2017], lvdenied 29 NY3d 1133 [2017]; People v Tucker, 91 AD3d at 1032; compare People v Jones, 136 AD3d1153, 1156-1157 [2016], lv dismissed 27 NY3d 1000 [2016]). Thus, the recordevidence does not establish a serious physical injury as defined by Penal Law§ 10.00 (10). Nonetheless, given that the evidence supports a finding that defendantcommitted the lesser included crime of attempted assault in the first degree, the conviction forassault in the first degree should be reduced to the lesser included offense of attempted assault inthe first degree, the sentence imposed thereon vacated and the matter remitted to County Courtfor resentencing on such crime (see People v Alvarez, 38 AD3d at 934-935; People vGray, 30 AD3d at 773; People v Alvarado, 262 AD2d 710, 711 [1999]).
Defendant argues that the verdict with respect to the criminal possession of a weapon chargeswas against the weight of the evidence because the proof was deficient with respect to [*4]the possession element (see Penal Law§§ 265.02 [1]; 265.03 [1] [b]; [3]). In particular, defendant asserts that the onlywitnesses who testified that he possessed a gun were the victim and the ex-girlfriend and theywere not credible. The veracity of these witnesses, however, was thoroughly explored at trial and,contrary to defendant's assertion, nothing in their respective testimonies renders them incredibleas a matter of law (see People v Dallas, 58 AD3d 1019, 1020 [2009], lv denied 12NY3d 815 [2009]). According deference to the jury's credibility assessments given its ability toobserve the demeanor of the witnesses, we see no basis to disturb the verdict with respect to thecriminal possession of a weapon charges (see People v Harwood, 139 AD3d 1186, 1188 [2016], lvdenied 28 NY3d 1028 [2016]; People v Wright, 134 AD3d 1299, 1300-1301 [2015]; People v Mosher, 94 AD3d 1231,1232 [2012], lv denied 19 NY3d 999 [2012]).
Defendant's argument that County Court erred by not giving a justification charge is notpreserved for review in light of his failure to request such charge or to object to the court's finalcharge as given (see People vRamirez, 118 AD3d 1108, 1111 [2014]). In any event, the facts and circumstances ofthis case did not warrant such charge (see People v Brown, 184 AD2d 856, 858 [1992],lv denied 80 NY2d 927 [1992]; compare People v Craft, 101 AD2d 984, 985[1984]). To that end, defendant was not denied effective assistance based upon his counsel'sfailure to request a justification charge (see People v Andrews, 78 AD3d 1229, 1231-1232 [2010], lvdenied 16 NY3d 827 [2011]).
Finally, defendant argues that the aggregate sentence of 13 years is harsh and excessive.County Court sentenced defendant to a prison term of 10 years, plus five years of postreleasesupervision, for the conviction of assault in the first degree. As discussed, the sentence for thisconviction must be vacated. Notwithstanding the foregoing, for the criminal possession of aweapon in the second degree convictions, County Court sentenced defendant to concurrent prisonterms of 13 years, plus five years of postrelease supervision. Where, as here, the sentence fallswithin the permissible statutory range, it will not be disturbed unless the sentencing court abusedits discretion or extraordinary circumstances exist warranting a modification (see People v Gray, 151 AD3d1470, 1476 [2017], lv denied 30 NY3d 949 [2017], cert denied 583 US&mdash, 138 S Ct 1295 [2018]; Peoplev Decoste, 144 AD3d 1265, 1266 [2016]). Because neither is present, we rejectdefendant's challenge to the imposed aggregate sentence (see People v Nelson, 128 AD3d 1225, 1228 [2015], lvdenied 26 NY3d 1041 [2015]; People v Thomas, 105 AD3d 1068, 1072 [2013], lv denied21 NY3d 1010 [2013]).
Garry, P.J., and Rumsey, JJ., concur.
Egan Jr., J. (concurring in part and dissenting in part). We agree with the majority'sdetermination that the grand jury proceedings were not defective, that there was support in therecord from which the jury could infer defendant's intent to cause serious physical injury withrespect to his conviction for assault in the first degree, that his convictions for criminalpossession of a weapon were not against the weight of the evidence, that he failed to preserve hischallenge to the jury charge and that the sentence imposed was not harsh or excessive. However,because we find that the evidence introduced at trial supports a finding that the victim sustained aserious physical injury (see Penal Law §§ 10.00 [10]; 120.10 [1]), werespectfully dissent from the majority's holding that defendant's conviction for assault in the firstdegree was against the weight of the evidence.
As relevant here, a defendant is guilty of assault in the first degree when, "[w]ith intent [*5]to cause serious physical injury to another person, he [or she]causes such injury to such person . . . by means of a deadly weapon" (Penal Law§ 120.10 [1]). In turn, serious physical injury is defined as a "physical injury whichcreates a substantial risk of death, or which causes death or serious and protracted disfigurement,protracted impairment of health or protracted loss or impairment of the function of any bodilyorgan" (Penal Law § 10.00 [10]).
The victim's testimony, coupled with photographs of the injuries that he sustained, establishthat he was shot in the left leg at close range, sustaining an entry wound slightly below the kneeand an exit wound near his calf. The photographs of the injury clearly show two holes in thevictim's leg from the bullet entry wound and the bullet exit wound, and they show the extensivebleeding that he suffered as a result thereof. Although no medical evidence was introduced attrial with regard to the victim's injuries, the victim testified that, after sustaining the gunshotwound, he was transported via ambulance to the hospital where he immediately underwentsurgery, followed by a second surgery two days later. The victim testified that the gunshot wound"shattered" his tibia and that, during the initial surgery, an "external fixator" was mounted, whichconsisted of a series of metal rods and pins being drilled into the bone to brace or stabilize same.The external fixator remained in place for four months, during which time the victim was notmobile and largely confined to bed. The victim testified that he returned to the hospital forregular monthly visits during such time, wherein certain metal pins or rods were removed, asnecessary, and that he felt "miraculous pain" throughout the four months that the external fixatorremained in place. After removal of the external fixator, the victim was then placed into awalking cast for an additional month and a half. The victim testified that, as of trial, he continuedto walk with a limp and was still undergoing rehabilitation for his injuries, and the gunshotwound left him with "visible scarring," which he displayed to the jury.
Based on the foregoing, it is our opinion that the jury reasonably found that the victimsuffered a protracted impairment of health, constituting a serious physical injury such thatdefendant's conviction for assault in the first degree was supported by the weight of the evidence(see Penal Law §§ 10.00 [10]; 120.10 [1]; People v Kern, 75NY2d 638, 658 [1990], cert denied 498 US 824 [1990]; People v Ford, 156 AD3d 1242,1243 [2017], lv denied 31 NY3d 1013 [2018]; People v Jones, 136 AD3d 1153, 1156-1157 [2016], lvdismissed 27 NY3d 1000 [2016]; People v Heyliger, 126 AD3d 1117, 1119 [2015], lv denied25 NY3d 1165 [2015]; People vRice, 90 AD3d 1237, 1237-1238 [2011], lv denied 18 NY3d 961 [2012]; People v Casey, 61 AD3d 1011,1012-1013 [2009], lv denied 12 NY3d 913 [2009]; People v Coy, 45 AD3d 1050, 1051 [2007]; People v Khuong Dinh Pham, 31 AD3d962, 965-966 [2006]; comparePeople v Stewart, 18 NY3d 831, 832-833 [2011]; People v Gray, 30 AD3d 771, 773 [2006], lv denied 7NY3d 848 [2006]). Accordingly, we would affirm defendant's judgment of conviction in allrespects.
Devine, J., concurs. Ordered that the judgment is modified, on the facts, by reducingdefendant's conviction for assault in the first degree under count 1 of the indictment to attemptedassault in the first degree; vacate the sentenced imposed thereon and matter remitted to theCounty Court of Tompkins County for resentencing on said count; and, as so modified,affirmed.