| People v Miranda |
| 2018 NY Slip Op 05229 [163 AD3d 1168] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Henzlee Miranda, Appellant. |
Brian M. Callahan, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered December 15, 2015, upon a verdict convicting defendant of the crimesof assault in the second degree (two counts) and tampering with physical evidence.
Defendant was charged in a five-count indictment with the crimes of assault in the firstdegree (two counts), assault in the second degree (two counts) and tampering with physicalevidence. These charges arose out of an incident in which defendant stabbed two victims duringa fight, causing them serious physical injuries. After a jury trial, defendant was convicted of twocounts of assault in the second degree and one count of tampering with physical evidence.Defendant appeals.
Initially, because defendant failed, at the close of all proof, to renew his motion for a trialorder of dismissal, he has not preserved for our review his challenge to the legal sufficiency ofthe evidence (see People v Hines, 97 NY2d 56, 61 [2001]). Nevertheless, in reviewingdefendant's argument that the verdict is against the weight of the evidence, we necessarily mustensure that the People established each of the elements of the crimes of which defendant was[*2]convicted (see People v Green, 141 AD3d 1036, 1037 [2016], lvdenied 28 NY3d 1072 [2016]).[FN*] To address defendant's weight of the evidenceargument, where an acquittal would not have been unreasonable, we must view the evidence in aneutral light, give deference to the jury's credibility determinations and weigh the relativestrength of conflicting testimony and inferences that may be drawn from that testimony (seePeople v Bleakley, 69 NY2d 490, 495 [1987]; People v Gagnier, 146 AD3d 1019, 1020 [2017], lv denied29 NY3d 1079 [2017]).
As relevant here, "[a] person is guilty of assault in the second degree when . . .[h]e [or she] recklessly causes serious physical injury to another person by means of. . . a dangerous instrument" (Penal Law § 120.05 [4]). "A person actsrecklessly with respect to a result or to a circumstance described by a statute defining an offensewhen he [or she] is aware of and consciously disregards a substantial and unjustifiable risk thatsuch result will occur or that such circumstance exists. The risk must be of such nature anddegree that disregard thereof constitutes a gross deviation from the standard of conduct that areasonable person would observe in the situation" (Penal Law § 15.05 [3]).
The pertinent facts are not in dispute. Defendant essentially concedes that the two victimssuffered serious physical injuries as a result of him stabbing them with a knife. The only elementtruly at issue is his state of mind, that is, whether he acted recklessly. The record containsevidence that supports the jury's finding that defendant acted recklessly. Defendant testified thathe had the knife because he was scared that the victims were going to attack him and he wantedto scare them, not injure them. He also testified that he swung the knife at them when they werevery close to him, though he did not remember whether he used a slashing or stabbing motion.Medical personnel testified that the victims had puncture or stab wounds, but they also had moresuperficial wounds consistent with a slashing motion. Although the evidence could havesupported a finding that defendant acted intentionally, record evidence also supports a findingthat, by swinging the knife in close proximity to the victims, defendant was aware of andconsciously disregarded a substantial and unjustifiable risk that he would seriously injuresomeone (see Penal Law § 15.05 [3]; People v Burnett, 100 AD3d 1561, 1562 [2012]). Accordingly, theweight of the evidence supports his convictions of assault in the second degree.
Garry, P.J., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Because defendant does not raiseany argument regarding his conviction of tampering with physical evidence, he has abandonedany challenge to that conviction.