| People v Pietoso |
| 2019 NY Slip Op 00498 [168 AD3d 1276] |
| January 24, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael A. Pietoso, Appellant. |
Thomas H. Kheel, Ithaca, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Daniel Johnson of counsel), forrespondent.
Lynch, J.P. Appeal from a judgment of the County Court of Tompkins County (Rowley, J.),rendered April 15, 2016, upon a verdict convicting defendant of the crimes of strangulation in thesecond degree and theft of services.
In September 2015, defendant was charged by indictment with strangulation in the seconddegree, attempted assault in the second degree and theft of services. The charges stemmed from aMay 2015 altercation between defendant and the victim, a cab driver who agreed to drivedefendant from the bus station in the City of Binghamton, Broome County to the Town ofSpencer, Tioga County. As defendant had no money to pay the $120 cab fare, the cab driver tookdefendant's eyeglasses, purportedly as collateral. It was alleged that defendant fought and chokedthe cab driver, recovered his eyeglasses and ran into nearby woods. After a jury trial, defendantwas convicted of strangulation in the second degree and theft of services. Defendant nowappeals.
Initially, we reject defendant's claim that the jury's verdict was against the weight of theevidence. Strangulation in the second degree is established when a person, "with intent to impedethe normal breathing or circulation of the blood of another person, . . . appliespressure on the throat or neck of such person" and, in doing so, "causes stupor . . .for any period of time, or any other physical injury or impairment" (Penal Law§§ 121.11 [a]; 121.12; see People v Haardt, 129 AD3d 1322, 1323 [2015]). Relevant here,a person is guilty of theft of services, when, "[w]ith intent to obtain . . . taxi. . . service without payment of the lawful charge therefor, or to avoid payment ofthe lawful charge for such transportation service which has been rendered to him [or her], he [orshe] obtains or attempts to obtain such service or avoids or attempts to avoid payment therefor byforce" (Penal Law § 165.15 [3]). Our weight of the evidence review permits us to"independently assess the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" only if we canconclude, as a threshold issue, that "a different verdict would not have been unreasonable" (People v Ryder, 146 AD3d 1022,1023 [2017] [internal quotation marks and citations omitted], lv denied 29 NY3d 1086[2017]; see People v Danielson, 9NY3d 342, 348-349 [2007]).
The victim testified that he was waiting for fares at the Binghamton bus station whendefendant approached and asked for a ride to Spencer, which was located approximately 40 milesaway. After the victim called his dispatcher for a price quote, defendant assured the victim that,although he had no money and was stranded, he could pay the fare once he arrived at thedestination. The victim agreed to take defendant for $100 and took defendant's eyeglasses ascollateral. According to the victim, defendant fell asleep while underway, but then woke up andasked the victim to drive to the City of Ithaca, Tompkins County where, he claimed, he couldretrieve his wallet at his workplace. The victim agreed to the diversion for an additional $20, butwhile en route, and on a remote roadway, defendant advised that they had arrived at his home andasked the victim to stop. When the victim complied and pulled to the side of the road, defendantreached around from the back seat of the cab, stretched his forearm across the victim's neck andbegan to choke him. When describing the struggle, the victim testified that, although he was ableto scratch at defendant's forearm, "[defendant] started to win the war with choking [him] to theextent that for a moment, [his] body went limp, [his] eyes rolled back in [his] head [and] [he] hadthe sensation of falling backwards in [his] head." At some point during the incident, the victimbacked his car into the roadway and engaged the horn to attract attention and seek help.
Defendant testified differently. He recalled drinking the equivalent of seven cans of beerprior to boarding a bus to Binghamton to meet someone who had agreed to drive him to arehabilitation facility located in Spencer. After defendant spent his money, missed his ride andthen lost his backpack containing his wallet, he retained the victim to drive him with theexpectation that, once he arrived, either someone at the facility or his father would pay the fare.According to defendant, the victim initially told him the fare to Spencer would be $80, but thatwhen they were rerouted due to construction, the victim requested an additional $20. Defendantrecalled that the victim became "nervous" and "fidgety" once he learned that defendant washeading to a rehabilitation facility. Contrary to the victim's recollection, defendant testified thathis eyeglasses—which were expensive and necessary for his extraordinary visionimpairments—were not offered as collateral. Rather, defendant recalled that as he wasdiscussing and showing his eyeglasses to the victim, the victim grabbed them and threw them onthe dashboard. Defendant, who could no longer see, asked the victim to stop. When the victimrefused, defendant falsely claimed that they had arrived at his destination. The victim pulled tothe side of the road, defendant lunged for his glasses, the victim elbowed him in the ribs anddefendant "bear hugged" the victim from behind. The two struggled until the victim yelled thathe could not breathe. Defendant let go and ran from the cab—with hiseyeglasses—into the woods, where he hid until law enforcement arrived.
In addition to this testimony, the homeowner of the house closest to where the victim pulledover testified that he heard a car horn, saw the cab in the middle of the road and called 911 whenhe heard the victim yelling for help. Ryan Slocum, a Tompkins County deputy sheriff, testifiedthat he arrived at the scene in response to a 911 call to find the victim "in a pure state of panic,"bleeding from his mouth and with abrasions on his neck. After the officers on thescene—including a canine officer—searched for defendant for some time,defendant emerged from the woods with his hands in the air and stated, "you're looking for me."Given the divergent testimony of the victim and defendant, an acquittal would not have beenunreasonable. Deferring to the jury's apparent determination to credit the victim's testimony andreject defendant's claims that he did not intend to strangle the victim to avoid paying the $120cab fare, together with the evidence of the injuries to the victim's neck and defendant's forearm,we find that the verdict finding defendant guilty of strangulation in the second degree and theft ofservices was not against the weight of the evidence (see People v Ryder, 146 AD3d at1025; People v Myles, 58 AD3d 889, 892 [2009], lv denied 14 NY3d 890[2010]).
Next, defendant takes issue with County Court's Sandoval ruling. Generally,"[e]vidence of prior specific criminal, vicious or immoral conduct should be admitted if thenature of such conduct or the circumstances in which it occurred bear logically and reasonably onthe issue of credibility" (People v Sandoval, 34 NY2d 371, 376 [1974]; see People v Smith, 18 NY3d 588,593 [2012]). Prior to trial, the People sought to impeach defendant with evidence of his addictionand five specific prior acts in the event that he chose to testify. County Court determined to limitthe People's inquiry to permit only confirmation that on certain past occasions, defendant hadbecome intoxicated and law enforcement intervened. During the trial, the People further soughtto impeach defendant with evidence of a recorded telephone call that he had with a counselorwherein the two discussed defendant's drinking and losing his backpack prior to boarding the busto Binghamton and incidences of defendant "blacking out" and sustaining injuries after drinking.Also during the recorded call, the counselor recalled that defendant stole a van and commentedthat when defendant gets intoxicated, "a flip gets switched," he becomes "unpredictable" and hebehaves badly. As to this request, County Court ruled that if defendant testified, the Peoplewould be allowed to impeach defendant with relevant portions of the tape but not the counselor'scommentary.
We first note that defendant failed to preserve his claim that he was denied a fair trialbecause County Court did not issue its Sandoval ruling until after the close of thePeople's case (see People vQuintana, 159 AD3d 1122, 1127-1128 [2018], lv denied 31 NY3d 1086 [2018]).Further, we are not persuaded by defendant's general challenge to the Sandoval ruling.When making such a ruling, a trial court has the discretion to "choose from several options whenweighing the prejudice to a defendant's right to a fair trial against the People's right to impeach atestifying defendant's credibility" (People v Young, 115 AD3d 1013, 1014 [2014], lv denied24 NY3d 1124 [2015]). In our view, the court did not abuse its discretion because thedetermination to limit the scope and nature of the evidence that could be raised duringdefendant's testimony properly balanced the probative value of the prior conduct against the riskof prejudice to defendant (see People vKeener, 152 AD3d 1073, 1074 [2017]; People v Mould, 143 AD3d 1186, 1188 [2016], lv denied28 NY3d 1187 [2017]; People v Young, 115 AD3d at 1014).
Next, defendant argues that County Court erred by refusing to charge criminal obstruction ofbreathing or blood circulation (see Penal Law § 121.11) as a lesser includedoffense of strangulation in the second degree (see Penal Law § 121.12). Towarrant such a charge, "[f]irst, the proposed lesser offense must be an offense of lesser grade ordegree and it must be in all circumstances . . . impossible to commit the greatercrime without concomitantly, by the same conduct, committing the lesser offense. Second, theremust be a reasonable view of the evidence in the particular case that would support a finding that[the] defendant committed the lesser offense but not the greater" (People v Davis, 14 NY3d 20,22-23 [2009] [internal quotation marks, emphasis, brackets and citation omitted]; see People v Grayson, 138 AD3d1250, 1251 [2016], lv denied 27 NY3d 1132 [2016]). The People properly concedethat it is impossible to commit strangulation in the second degree without also committingcriminal obstruction of breathing or blood circulation. The victim described not just thatdefendant's forearm against his neck obstructed his breathing, but also the effects that he feltwhen defendant obstructed his breathing—the feeling of going limp, his eyes rolling backand the sensation of falling. We agree with the court's conclusion that there is no reasonable viewof the evidence that would allow the jury to find that he committed the lesser but not the greatercrime, which, as stated, includes the additional element that the obstruction causes "stupor"(Penal Law § 121.12; see People v Blim, 63 NY2d 718, 720 [1984]; People v Taylor, 163 AD3d 1275,1277 [2018], lv denied 32 NY3d 1068 [2018]).
We also find that County Court properly charged the jury regarding the justification defense.The crux of defendant's argument is that the court erred because it should have instructed the juryto consider whether defendant's use of "physical force" (Penal Law § 35.15 [1])rather than "deadly physical force" (Penal Law § 35.15 [2]) was justified. We arenot persuaded. " 'Deadly physical force' means physical force which, under thecircumstances in which it is used, is readily capable of causing death or other serious physicalinjury" (Penal Law § 10.00 [11]). Whether conduct constitutes deadly physicalforce "hinges on the nature of the risk created—i.e., its imminence or immediacy, as wellas its gravity. The risk of serious injury or death and the capacity presently to inflict the same arecentral to the definition, not the consequence of [a] defendant's conduct or what he [or she]intended" (People v Magliato, 68 NY2d 24, 29 [1986]). Accepting as true that defendantbelieved any defensive physical force was necessary under the circumstances, we agree withCounty Court that applying pressure and force against a victim's neck to obstruct his breathingand cause stupor constitutes "deadly physical force" for purposes of Penal Law§ 35.15 (2). In any event, given the evidence, we are satisfied that even if CountyCourt had issued the requested charge, the verdict would not have been different (see People v Jones, 3 NY3d 491,497 [2004]).
Finally, defendant's argument that County Court failed to properly respond to a juror'spurported inability to hear some portion of a witness's testimony is not preserved for ourreview.
Clark, Mulvey, Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.