| People v Hilton |
| 2018 NY Slip Op 07981 [166 AD3d 1316] |
| November 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v James Hilton, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Milano, J.), renderedDecember 2, 2016 in Schenectady County, upon a verdict convicting defendant of thecrimes of assault on a police officer, assault in the second degree, strangulation in thesecond degree and resisting arrest and the violation of disorderly conduct.
In August 2015, a City of Schenectady police officer (hereinafter the victim)observed defendant, who was drunk, in the middle of the street holding an orange trafficcone and speaking through it as though it was a bull horn. The victim inquired about thecone and was subsequently reassured by defendant's friends that the cone would bereturned to its original location. The victim, however, saw defendant later still holdingthe traffic cone. The victim stopped defendant, asked him for identification and, afterdefendant refused, the victim told defendant that he would need to be detained. While inthe process of being detained, defendant assaulted the victim. Defendant then ran away,and the victim was taken to the hospital where he was treated for his injuries. Policeofficers subsequently found defendant hiding in a dumpster. Defendant was driven to thehospital where the victim identified him as the assailant. In connection with this incident,defendant was charged by indictment with assault on a police officer, assault in thesecond degree, strangulation in the second degree, disorderly conduct and resistingarrest. Upon defendant's motion to suppress identification evidence, a Wadehearing was held before a Judicial Hearing Officer, after which Supreme Court adoptedthe [*2]recommendation to deny defendant's motion.Following a jury trial, defendant was convicted as charged. Supreme Court thereaftersentenced defendant to an aggregate prison term of 13 years, to be followed by five yearsof postrelease supervision. Defendant appeals.
Defendant's argument that the evidence was not legally sufficient to support hisconviction is unpreserved for review given that he failed to renew his motion to dismissat the close of all proof (seePeople v Lane, 7 NY3d 888, 889 [2006]; People v Miranda, 163 AD3d 1168, 1169 [2018]; People v Ash, 162 AD3d1318, 1318 [2018], lv denied 32 NY3d 1002 [2018]). Defendant, however,also argues that the convictions for assault on a police officer, assault in the seconddegree and strangulation in the second degree were against the weight of the evidence. Inview of this assertion, we necessarily review the evidence adduced regarding eachelement of these specifically challenged crimes (see People v Spencer, 152 AD3d 863, 863 [2017], lvdenied 30 NY3d 983 [2017]; People v Pigford, 148 AD3d 1299, 1300 [2017], lvdenied 29 NY3d 1085 [2017]). "Where, as here, it would have been reasonable forthe factfinder to reach a different conclusion, then we must, like the trier of fact below,weigh the relative probative force of conflicting testimony and the relative strength ofconflicting inferences that may be drawn from the testimony" (People v Williams, 138 AD3d1233, 1234 [2016] [internal quotation marks, brackets and citations omitted], lvdenied 28 NY3d 939 [2016]; see People v Myers, 163 AD3d 1152, 1153 [2018]; People v Williams, 156 AD3d1224, 1225-1226 [2017], lv denied 31 NY3d 1018 [2018]).
Regarding the charge of strangulation in the second degree, a physician testified attrial that the bruising suffered by the victim on his neck was "more linear in nature" andopined that it was consistent with pressure being applied to the carotid artery. Thephysician further stated that, with enough pressure to the carotid artery, a person couldlose consciousness within 5 to 10 seconds. The victim testified that the bruise on his neckcame "from a carotid hold, or a blood choke" being applied to him by defendant while hewas on his stomach and defendant was on his back and that such hold affected hisconsciousness. Although defendant testified that he never performed a blood choke holdon the victim, the jury was entitled to reject his account of the incident at issue (see People v Valcarcel, 160AD3d 1034, 1037 [2018], lv denied 31 NY3d 1088 [2018]). Based upon theforegoing and the photographs admitted into evidence, we conclude that thestrangulation conviction was not against the weight of the evidence (see People v Ryder, 146 AD3d1022, 1025 [2017], lv denied 29 NY3d 1086 [2017]; People v Cox, 129 AD3d1210, 1212 [2015], lv denied 26 NY3d 966 [2015]).
Regarding his argument that the convictions for assault on a police officer andassault in the second degree were against the weight of the evidence, defendantchallenges the proof as to the element of serious physical injury. Serious physical injuryis defined as a "physical injury which creates a substantial risk of death, or which causesdeath or serious and protracted disfigurement, protracted impairment of health orprotracted loss or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]). The victim testified that defendant punched him multipletimes in the head while on top of him and that he lost consciousness. When the victimregained consciousness, he was dizzy and had difficulty standing up. The victim waseventually taken to the hospital where he was diagnosed with a fractured temple, abroken finger and swelling to his brain. The victim also had bruising and swelling on hisface, bruising on his neck and a black and blue eye. Following this incident, the victimtreated with a traumatic brain specialist, who, in October 2016, advised him that hisissues, including his post-concussive migraine syndrome, could be long term. At the timeof trial, the victim stated that he experienced dizziness, memory loss and headaches andthat he has missed time from work. The [*3]victim alsostated that sometimes his headaches are so severe that he stays in bed all day. Thevictim's girlfriend similarly testified as to the severity of the victim's headaches and alsostated that the victim had trouble remembering words and sometimes had a blank stareduring a conversation. Viewing the evidence in a neutral light, we conclude that thevictim suffered a protracted impairment of health (see People v Ford, 156 AD3d 1242, 1244 [2017], lvdenied 31 NY3d 1013 [2018]; People v Nicholson, 97 AD3d 968, 969-970 [2012], lvdenied 19 NY3d 1104 [2012]; People v Jau Kud Su, 239 AD2d 703, 704-705[1997], lv denied 90 NY2d 940 [1997]; cf. People v Lewis, 277 AD2d603, 606-607 [2000], lv denied 95 NY2d 966 [2000]; compare People vPhillip, 279 AD2d 802, 803-804 [2001], lv denied 96 NY2d 905[2001]).
Defendant claims that count 5 of the indictment charging him with resisting arrestwas rendered duplicitous by testimony adduced at trial. We agree. "Even if a countfacially charges one criminal act, that count is duplicitous if the evidence makes plainthat multiple criminal acts occurred during the relevant time period, rendering it nearlyimpossible to determine the particular act upon which the jury reached its verdict" (People v Dalton, 27 AD3d779, 781 [2006], lv denied 7 NY3d 754 [2006]). The indictment chargeddefendant with one count of resisting arrest. According to the record evidence, however,the jury was presented with two instances where defendant resisted an officer'sarrest—one involving the victim that turned violent and the other involving theofficers who discovered him in the dumpster. We also note that, during deliberation, thejury asked whether it could consider the incident at the dumpster with respect to theresisting arrest charge or solely defendant's encounter with the victim. In our view,Supreme Court's response in rereading count 5 of the indictment failed to dispel anyconfusion by the jury (comparePeople v Miller, 112 AD3d 1061, 1063 [2013], lv denied 23 NY3d 1040[2014]). Although this argument is unpreserved for review, we take corrective action inthe interest of justice by dismissing count 5 of the indictment with leave to the People tore-present any appropriate charges to a new grand jury (see CPL 470.15 [6] [a];People v Baker, 123 AD3d1378, 1378-1379 [2014]).
We reject defendant's argument that Supreme Court erred in adopting the JudicialHearing Officer's Wade hearing report recommending the denial of defendant'smotion to suppress. Contrary to defendant's assertion, the showup identification wasreasonable given its geographic and temporal proximity to the crime (see People v Gilley, 163 AD3d1156, 1158 [2018]; Peoplev Bellamy, 118 AD3d 1113, 1116 [2014], lv denied 25 NY3d 1159[2015]; People v August, 33AD3d 1046, 1048 [2006], lv denied 8 NY3d 878 [2007]; see generallyPeople v Brisco, 99 NY2d 596, 597 [2003]). The evidence from the Wadehearing reveals that, after defendant was apprehended, he was driven approximately onehour later to the hospital parking lot in a police car. The victim, who was approximately10 feet from the police car, immediately identified defendant when the rear door wasopened. Additionally, the fact that defendant was handcuffed and in the rear seat of apolice vehicle when the victim identified him did not render the showup identificationunduly suggestive as a matter of law (see People v Brown, 46 AD3d 1128, 1129-1130 [2007]; People v Armstrong, 11 AD3d721, 722 [2004], lv denied 4 NY3d 760 [2005]).
We are unpersuaded by defendant's claim that Supreme Court erred in permitting thePeople to submit evidence of defendant's background as a mixed martial arts fighter (see People v Scott, 47 AD3d1016, 1020-1021 [2008], lv denied 10 NY3d 870 [2008]). Supreme Courtfound, among other things, that such evidence was "appropriate and probative" on theserious physical injury element of assault in the second degree and the element ofimpeding the normal breathing of another person for strangulation in the second degree.Furthermore, we reject [*4]defendant's assertion that theprobative value of such evidence was outweighed by the potential prejudice to him(see generally People v Acevedo, 40 NY2d 701, 704-705 [1976]).
Nor do we find that defendant was deprived of meaningful representation.Defendant's dissatisfaction with defense counsel stems mainly from a disagreement withtrial strategies. Defendant, however, did not demonstrate the absence of strategic orlegitimate explanations for the claimed inadequacies (see People v Wright, 160 AD3d 1110, 1112 [2018], lvdenied 31 NY3d 1154 [2018]). Moreover, notwithstanding defense counsel's failureto lodge certain objections, our review of the record discloses that defense counselsought to preclude evidence of the pretrial identification, made opening and closingstatements, cross-examined the People's witnesses and called witnesses in support ofdefendant's defense. Accordingly, defendant did not receive the ineffective assistance ofcounsel (see People vAckerman, 141 AD3d 948, 950-951 [2016], lv denied 28 NY3d 1181[2017]; People v Bowman,139 AD3d 1251, 1252-1253 [2016], lv denied 28 NY3d 927 [2016]; People v Abare, 86 AD3d803, 806 [2011], lv denied 19 NY3d 861 [2012]).
Defendant failed to preserve his contention that Supreme Court erred in itsMolineux ruling (seePeople v Cayea, 163 AD3d 1279, 1280 [2018]). Defendant's argument thatSupreme Court's Molineux charge was erroneous is likewise unpreserved giventhat he did not object to the charge as given (see People v Gomez, 138 AD3d 1017, 1018 [2016], lvdenied 27 NY3d 1151 [2016]; People v Walker, 274 AD2d 600, 601 [2000],lv denied 95 NY2d 908 [2000]). Even if defendant had preserved his claims withrespect to the Molineux ruling and charge, they are without merit. Defendant'schallenge to the remarks made by the prosecutor during opening and closing statementsis unpreserved in the absence of a timely objection thereto (see People v Gunn, 144 AD3d1193, 1195 [2016], lv denied 28 NY3d 1145 [2017]; People v Richard, 30 AD3d750, 755 [2006], lv denied 7 NY3d 869 [2006]). In any event, the challengedcomments, even if erroneous, did not deprive defendant of a fair trial (see People v Wheeler, 159AD3d 1138, 1143 [2018], lv denied 31 NY3d 1123 [2018]). Defendant'sremaining contentions have been considered and lack merit.
Garry, P.J., McCarthy, Lynch and Rumsey, JJ., concur. Ordered that the judgment ismodified, as a matter of discretion in the interest of justice, by reversing defendant'sconviction of resisting arrest under count 5 of the indictment; said count dismissed andthe sentence imposed thereon vacated, with leave to the People to re-present anyappropriate related charges to a new grand jury; and, as so modified, affirmed.