| People v Mamadou |
| 2019 NY Slip Op 03697 [172 AD3d 1524] |
| May 9, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Barry Mamadou, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.),rendered November 20, 2015, upon a verdict convicting defendant of the crimes of promotingprison contraband in the first degree and assault in the second degree.
Defendant, an inmate at a correctional facility, was involved in a physical altercation withanother inmate (hereinafter the victim) in the infirmary that resulted in the victim sustainingbleeding and lacerations to his head. A folded piece of metal was subsequently discovered on theground near where defendant and the victim fought. Defendant was thereafter charged byindictment with promoting prison contraband in the first degree and assault in the second degree.Following a jury trial, defendant was convicted as charged and sentenced to a term ofimprisonment, along with a period of postrelease supervision. Defendant appeals. Weaffirm.
Defendant first challenges the verdict as against the weight of the evidence. Inasmuch as acontrary result would not have been unreasonable, our task in conducting a weight of theevidence review is to "weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony" (People v Myers, 163 AD3d 1152,1153 [2018] [internal quotation marks and citation omitted], lv denied 32 NY3d 1066[2018]; see People v Place, 152AD3d 976, 977 [2017], lv denied 30 NY3d 1063 [2017]). "In reviewing theevidence, this Court accords great deference to the jury's credibility determinations given itsopportunity to hear the testimony and observe the witnesses' demeanor" (People v Brousseau, 149 AD3d1275, 1276 [2017] [internal quotation marks, brackets and citations omitted]; see People v Green, 121 AD3d1294, 1294-1295 [2014], lv denied 25 NY3d 1164 [2015]).
With respect to the conviction for promoting prison contraband in the first degree, defendantargues that the evidence failed to establish that he possessed the weapon at issue. At trial, MickeyPribulick, a correction officer, testified that he responded to a fight in the infirmary and sawdefendant and the victim fighting each other. Pribulick testified that he saw defendant make"slashing motions." He further stated that, after other correction officers secured defendant andthe victim, he saw defendant drop a weapon. Pribulick described the weapon as "a metal foldedcan lid with a tape handle" and stated that it was near the victim when he picked it up from thefloor and secured it. Harold Thompson, another correction officer, testified that, when heresponded to the fight, he saw defendant punching the victim in the face and head. Thompsonalso noticed that defendant was attacking the victim with an open palm and making a slashingmotion, after which he saw "a lot of blood." Even though Thompson did not see defendant holdor drop a weapon, he testified that when an inmate fought with an open palm, "there's usuallysomething in it," and that a closed fist indicated the absence of weapon.
Viewing the record evidence in a neutral light, we find that the jury could rationally infer thatdefendant possessed a weapon during the altercation with the victim (see People v Johnson, 24 AD3d803, 803-804 [2005]; People v Brye, 233 AD2d 775, 776-777 [1996], lvdenied 89 NY2d 1009 [1997]). Although defendant denied having a weapon during thealtercation and testified that he fought with closed fists, this presented a credibility determinationfor the jury's resolution, and the jury was free to reject defendant's version of the events.Furthermore, Pribulick was thoroughly cross-examined about what he saw when he responded tothe altercation, and the minor inconsistencies in his testimony did not make him inherentlyunworthy of belief or incredible as a matter of law (see People v Alexander, 160 AD3d 1121, 1123 [2018], lvdenied 31 NY3d 1144 [2018]; People v Davis, 155 AD3d 1311, 1317 [2017], lv denied 30NY3d 1114 [2018]). As such, we see no basis to disturb the verdict with respect to the convictionfor promoting prison contraband in the first degree.
We also reject defendant's assertion that the jury's determination convicting him of assault inthe second degree was against the weight of the evidence. The record discloses that, followingthe altercation, the victim was "soaked in blood" and sustained lacerations and multiplecontusions. Taking into account Pribulick's description of the discovered weapon and thetestimony describing defendant's multiple slashing motions with an open fist, we are satisfiedthat the conviction for assault in the second degree is supported by the weight of the evidence (see People v Newland, 83 AD3d1202, 1204 [2011], lv denied 17 NY3d 798 [2011]; People v Zindle, 48 AD3d 971,973 [2008], lv denied 10 NY3d 846 [2008]).
Defendant contends that there was no proof to contradict his testimony that he acted inself-defense. However, several witnesses to the altercation testified to seeing the victim coweringand in a defensive posture. Indeed, Thompson testified that he did not see the victim punchdefendant and that the victim "tr[ied] to defend himself." Furthermore, even if the victim was theinitial aggressor, the multiple slashing actions and punches by defendant were not reasonable inresponse to any perceived threat (seePeople v Williams, 161 AD3d 1296, 1298 [2018], lv denied 32 NY3d 942[2018]; People v Terk, 24 AD3d1038, 1039 [2005]). In view of the foregoing, the jury was entitled to reject defendant'sjustification defense (see People v Green, 121 AD3d at 1295; People v Fisher, 89 AD3d 1135,1137-1138 [2011], lv denied 18 NY3d 883 [2012]).
Nor do we find merit in defendant's contention that he received the ineffective assistance ofcounsel. Defendant assails his counsel's failure to request assault in the third degree as a lesserincluded charge. In our view, however, the decision not to request that assault in the third degreebe charged is consistent with counsel's overall strategy of demonstrating that defendant did notpossess a weapon during the altercation. To that end, if the jury believed that theory, defendantcould have been acquitted of both charges. Accordingly, on this record, the failure to request alesser included charge did not amount to ineffective assistance (see People v Rosario, 157 AD3d988, 994 [2018], lv denied 31 NY3d 1121 [2018]; People v Ackerman, 141 AD3d948, 950 [2016], lv denied 28 NY3d 1181 [2017]). Defendant also challenges hiscounsel's failure to request a missing witness charge when the victim did not testify. The record,however, does not indicate that the victim was in the People's control or that he would haveprovided material testimony (see Peoplev Smith, 157 AD3d 978, 982 [2018], lv denied 31 NY3d 1087 [2018]). Wefurther note that defendant consented to the victim not testifying. Viewing the record as a whole,we are satisfied that defendant received meaningful representation (see People v Pratt, 162 AD3d1202, 1205 [2018], lv denied 32 NY3d 940 [2018]; People v Torres, 14 AD3d 801,803 [2005], lv denied 4 NY3d 836 [2005]).
Egan Jr., J.P., Devine and Rumsey, JJ., concur. Ordered that the judgment is affirmed.