| People v Greenfield |
| 2018 NY Slip Op 08367 [167 AD3d 1060] |
| December 6, 2018 |
| Appellate Division, Third Department |
[*1](December 6, 2018)
| The People of the State of New York,Respondent, v David Greenfield, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.),rendered December 18, 2014, upon a verdict convicting defendant of the crime of attemptedmurder in the second degree.
On July 8, 2010, shortly before 6:00 a.m., defendant climbed on top of his long-termgirlfriend as she lay half asleep in their bed and repeatedly stabbed her with two kitchen knives,thereby inflicting a total of eight wounds over her neck, chest and shoulder. Defendant wassubsequently charged by indictment with, as relevant here, attempted murder in the seconddegree, assault in the first degree and assault in the second degree. Following a jury trial,defendant was convicted of attempted murder in the second degree and, in March 2011, he wassentenced as a second felony offender to 25 years in prison, followed by five years of postreleasesupervision. On appeal, this Court reversed the judgment of conviction on the ground that"County Court committed reversible error when it denied [defendant's] challenge for cause to [a]prospective juror" (112 AD3d 1226, 1228 [2013], lv denied 23 NY3d 1037 [2014]).Following a retrial, defendant was again convicted of attempted murder in the second degree andsentenced to a prison term of 25 years and five years of postrelease supervision. Defendantappeals, and we affirm.
Contrary to defendant's contention, we find that the verdict is supported by legally sufficientevidence and is not against the weight of the evidence. A legal sufficiency challenge requires thisCourt to evaluate whether the evidence—viewed in the light most favorable to thePeople—provides "any valid line of reasoning and permissible inferences which couldlead a rational person to the conclusion reached by the jury on the basis of the evidence at trialand as a matter of law satisfy the proof and burden requirements for every element of the crimecharged" (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Aleynikov, 31 NY3d383, 395-396 [2018]). In contrast, in determining whether a verdict is supported by theweight of the evidence, we first consider whether a different verdict would have beenunreasonable and, if it would not, we "weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony"(People v Bleakley, 69 NY2d at 495 [internal quotation marks and citation omitted]; see People v Lang, 164 AD3d 963,966 [2018]; People v Novak, 148AD3d 1352, 1354 [2017], lv denied 29 NY3d 1084 [2017]). A conviction forattempted murder in the second degree requires proof that, with intent to cause the death ofanother, the defendant engaged in conduct that tended to effect the commission of that crime(see Penal Law §§ 110.00, 125.25 [1]; People v Fernandez, 88NY2d 777, 783 [1996]; People vHamilton, 127 AD3d 1243, 1243 [2015], lv denied 25 NY3d 1164 [2015]).
Defendant does not dispute that, without provocation, he straddled the victim in their bed asshe lay half asleep on her back and repeatedly stabbed her with a butcher knife and a steak knifethat he had retrieved from their kitchen. However, he argues that the proof did not establish thathe intended to kill the victim or that his conduct tended to effect murder because he had themeans, ability and opportunity to kill the victim, but did not do so and, in fact, called 911 seekingemergency medical attention for the victim's injuries. We disagree.
The evidence—including the victim's testimony, statements that defendant made in arecorded 911 call and defendant's written statement to police—established that defendantfirst stabbed the victim in the neck, cutting her external jugular vein, and thereafter stabbed herrepeatedly in and around her chest. Defendant asserted in his written statement that, after hestabbed the victim "just below the throat," he "started stabbing her fast, six or seven times belowthe throat" and that he eventually stopped when he had "enough or realized that it wasn't doinganything." In both the 911 call and his written statement, defendant stated that he and the victimhad been having "problems" for quite some time. Defendant also asserted in his written statementthat he had previously tried to end his relationship with the victim without success, that he"figured it was just as easy to stab her" and that, "[i]f it was worse[, he] would still have probablycalled [911 because] it would have been stupid to run." The emergency room physician whotreated the victim testified that, because there was a risk of ongoing blood loss, the cut to thevictim's external jugular vein had the potential to be life threatening. Considering thecircumstances, including the place and manner in which defendant stabbed the victim, we findthat the evidence—viewed in the light most favorable to the People—presented avalid line of reasoning and permissible inferences from which a rational juror could conclude thatdefendant intended to kill the victim and came dangerously close to doing so (see People vGreenfield, 112 AD3d at 1226-1227; People v Cooley, 50 AD3d 1548, 1549 [2008], lv denied 10NY3d 957 [2008]; People v King, 293 AD2d 815, 816 [2002], lv denied 98NY2d 698 [2002]). Furthermore, while a different verdict would not have been unreasonable,viewing the evidence in a neutral light, we do not find the verdict to be against the weight of theevidence (see People v Townsend,144 AD3d 1196, 1196-1197 [2016], lv denied 28 NY3d 1189 [2017]; People vCooley, 50 AD3d at 1549; People v King, 293 AD2d at 816).
Defendant also challenges the admission of certain photographs—specifically,People's exhibit Nos. 5-7 and 9-12—into evidence on the basis that they were undulyprejudicial and of limited probative value. Initially, by failing to object at the time of theiradmission into evidence, defendant failed to preserve his challenge to exhibit Nos. 10-12, whichdepicted the knives used by defendant to stab the victim (see CPL 470.05 [2]; People v Valencia-Noralez, 127 AD3d1113, 1113 [2015], lv denied 25 NY3d 1209 [2015]; People v Wright, 38 AD3d 1004,1006 [2007], lv denied 9 NY3d 853 [2007]). The remaining challenged photographs werecertainly graphic in nature, as they depicted the bloody scene left in the apartment in theaftermath of defendant's attack. Nevertheless, the photographs were relevant to the material issueof defendant's intent and helped to illustrate or elucidate the extent and seriousness of the victim'sinjuries, as well as the layout of the apartment shared by defendant and the victim (see People v Thibeault, 73 AD3d1237, 1243 [2010], lv denied 15 NY3d 810 [2010], cert denied 562 US 1293[2011]; People v Mastropietro, 232 AD2d 725, 726 [1996], lv denied 89 NY2d1038 [1997]; People v Wilson, 168 AD2d 696, 697-698 [1990]). Importantly, thephotographs were not introduced for the sole purpose of " 'arous[ing] the emotions of thejury and to prejudice . . . defendant' " (People v Wood, 79 NY2d958, 960 [1992], quoting People v Pobliner, 32 NY2d 356, 370 [1973], certdenied 416 US 905 [1974]). Moreover, prior to publishing the photographs to the jury,County Court appropriately instructed the jurors to refrain from making any emotional judgmentsbased on the photographs (see People vTimmons, 78 AD3d 1241, 1245 [2010], lv denied 16 NY3d 837 [2011];People v Thibeault, 73 AD3d at 1243). Accordingly, we find no abuse of discretion inCounty Court's admission of exhibit Nos. 5-7 and 9 into evidence (see People v Powell, 115 AD3d998, 999-1000 [2014], lv denied 23 NY3d 1024 [2014]; People v Alvarez, 38 AD3d 930,931-932 [2007], lv denied 8 NY3d 981 [2007]).
Additionally, defendant argues that he was deprived of the effective assistance of counsel.Defendant first asserts that, given the evidence and because his defense hinged on the question ofintent, defense counsel should have conducted an investigation into his mental health todetermine if a viable psychiatric defense was available to him. However, the record does notdisclose whether and to what extent, if any, defense counsel investigated the possibility of apsychiatric defense nor does it reveal defense counsel's decision-making process regardingwhether to present such a defense. As such, this claim is more properly the subject of a CPLarticle 440 motion (see People vVickers, 156 AD3d 1236, 1238 [2017], lv denied 31 NY3d 988 [2018]; People v Perry, 154 AD3d 1168,1171 [2017]; see generally People vOliveras, 21 NY3d 339 [2013]). Defendant's further criticism of defense counsel doesnot, by itself, constitute ineffective assistance of counsel. Defendant claims that defense counselshould have objected to the admission of his written statement into evidence as having beenmade involuntarily. However, any such objection would have had little to no likelihood ofsuccess given that, following a Huntley hearing before the first trial, County Court foundthe written statement to have been voluntary and, thus, admissible (see People v Evans,94 NY2d 499, 504-505 [2000]; People v Nieves, 67 NY2d 125, 137 and n 5 [1986]; People v Phelan, 82 AD3d 1279,1282 [2011], lv denied 17 NY3d 799 [2011]). Moreover, defense counsel conducted athorough cross-examination of the detective who interviewed defendant and transcribed hisstatement, as well as the additional police officer present for the interview, and through thosecross-examinations was able to highlight, among other weaknesses in the People's case,defendant's inability to read and approve his transcribed statement without reading glasses.
Defendant's remaining contentions warrant little discussion. In the absence of a motion forrecusal or specific objection to County Court's conduct, defendant failed to preserve his claimthat County Court exhibited bias against him in the presence of the jury by stating, during anevidentiary ruling, that defense counsel was "wrong" (see People v Prado, 4 NY3d 725, 726 [2004]; People v Holmes, 151 AD3d 1181,1184 [2017], lv denied 29 NY3d 1128 [2017]; People v Lebron, 305 AD2d 799,800 [2003], lv denied 100 NY2d 583 [2003]). In any event, even if preserved, our reviewof the record, including the circumstances under which County Court made the complained-ofcomment, does not support defendant's claim of judicial bias (see People v Holmes, 151AD3d at 1184; People v Lebron, 305 AD2d at 801; People v Travis, 273 AD2d544, 546 [2000]). Finally, given the violent nature of the crime, the lasting impact to the victimand defendant's lengthy criminal history, which includes three felony convictions and 12misdemeanor convictions, we do not find defendant's 25-year prison sentence to be harsh orexcessive (see People v Townsend, 144 AD3d at 1197; People v King, 293 AD2dat 815).
Lynch, J.P., Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.