| People v Jaber |
| 2019 NY Slip Op 03988 [172 AD3d 1227] |
| May 22, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Omar Jaber, Appellant. |
Paul Skip Laisure, New York, NY (Jenin Younes of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jodi L. Mandel, andSullivan & Cromwell LLP [Amanda Shami], of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Evelyn J.Laporte, J.), rendered March 23, 2015, convicting him of assault in the second degree andcriminal possession of a weapon in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
During an altercation, the defendant cut the complainant's hand with a butcher knife. After ajury trial, the defendant was convicted of assault in the second degree and criminal possession ofa weapon in the fourth degree.
The defendant's motions for a trial order of dismissal were insufficiently specific to preservefor appellate review the defendant's challenges to the legal sufficiency of the evidence withrespect to the count of assault in the second degree (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidencein the light most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt of assault in thesecond degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt of assault in the second degree was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
A person is guilty of assault in the second degree, as charged in this case, when, "[w]ithintent to cause physical injury to another person, he causes such injury to such person. . . by means of a deadly weapon or a dangerous instrument" (Penal Law§ 120.05 [2]). The term "physical injury," as used in the Penal Law, means"impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]).Perhaps most important in determining whether the "substantial pain" necessary to establish anassault charge has been proved "is the injury defendant inflicted, viewed objectively" (People v Chiddick, 8 NY3d 445,447 [2007]; see Matter of Philip A., 49 NY2d 198 [1980]). "The subjective reaction ofthe victim is but one factor for the jury to consider," and a finding of substantial pain may beinferred from objective evidence (People v Rojas, 61 NY2d 726, 727-728 [1984]; see People v Monserrate, 90 AD3d785, 787 [2011]), including "the nature of the victim's injury, the way it was inflicted"(People v Vasquez, 297 AD2d 297, 298 [2002]), whether the victim sought medicalassistance, and the extent of medical treatment required (see e.g. People v Brown, 95 AD3d 1229, 1230 [2012]).
Here, the evidence established that the complainant suffered substantial pain, and thussustained a physical injury (see People v Chiddick, 8 NY3d at 447). The People's medicalexpert, who was the attending physician, testified that the complainant was diagnosed with alaceration of the hand that was "deep enough to penetrate into muscle of the hand," that themedical staff had "enough concern about the bleeding" that they asked a hand surgeon to checkfor arterial injury, and that they performed neurologic and tendon exams to determine whetherthe complainant's neurologic and tendon functions were intact. The jury was entitled to credit thetestimony of the attending physician over that of the defendant's expert, who had never examinedthe complainant, and who opined that the complainant sustained a one-inch long superficial cut.Since "physical injury" means "impairment of physical condition or substantial pain"(Penal Law § 10.00 [9] [emphasis added]), the People, having established theelement of substantial pain, were not required to present evidence of impairment.
With respect to the element of intent, "[a] person acts intentionally with respect to a result. . . when his [or her] conscious objective is to cause such result or to engage in suchconduct" (Penal Law § 15.05 [1]). "[I]ntent can be inferred from the act itself"(People v Bracey, 41 NY2d 296, 301 [1977]) or from the defendant's conduct and thesurrounding circumstances (see People v Steinberg, 79 NY2d 673, 682 [1992]; People v Carrington, 155 AD3d888, 889 [2017]; People vForde, 120 AD3d 509 [2014]). Here, although neither of the two eyewitnesses saw theactual stabbing, they observed the escalating conflict between the defendant and the complainantand the events immediately preceding the incident. These events included the defendant grabbinga large butcher knife, jumping over the counter with it, and landing only a few feet from thecomplainant while holding the knife over the defendant's head. That testimony, together with therecording of the complainant's 911 calls and the severity of the wound, entitled the jury toreasonably infer the defendant's intent to cause physical injury to the complainant. The jury wasentitled to credit the testimony of the People's witnesses over the conflicting testimony of thedefense witnesses, including the defendant's testimony that he did not intend to stab thecomplainant, and that the complainant cut himself on the knife when he raised his hand (see People v Braithwaite, 126 AD3d993, 995 [2015]; People vAlexander, 50 AD3d 816, 818 [2008]).
Contrary to the defendant's contention, the complainant's 911 calls were properly admittedinto evidence as excited utterances. "A spontaneous declaration or excitedutterance—made contemporaneously or immediately after a startling event—whichasserts the circumstances of that occasion as observed by the declarant is an exception to theprohibition on hearsay" (People vCummings, 31 NY3d 204, 209 [2018] [internal quotation marks omitted]; see Peoplev Edwards, 47 NY2d 493, 496-497 [1979]). The determination of admissibility of astatement as an excited utterance is entrusted in the first instance to the trial court, which "mustassess not only the nature of the startling event and the amount of time which has elapsedbetween the occurrence and the statement, but also the activities of the declarant in the interim toascertain if there was significant opportunity to deviate from the truth" (People vEdwards, 47 NY2d at 497; see People v Cotto, 92 NY2d 68, 79 [1998]; People vSimpson, 238 AD2d 611, 612 [1997]). Here, the evidence demonstrated that the 911 callsqualified as excited utterances. First, the nature of the attack on the complainant was the type ofstartling event that would cause "physical shock or trauma" (People v Vasquez, 88 NY2d561, 579 [1996]; see People v Brooks, 71 NY2d 877, 878 [1988]). Further, the 911 callswere made only approximately five minutes after the event, and in those intervening minutes, thecomplainant ran across the street from the scene of the incident to his apartment to bandage hiswound. Under these circumstances, this short interval of time did not "detract[ ] from [the]spontaneity" of the statements (People v Fratello, 92 NY2d 565, 571 [1998][approximately 10-minute delay between injury and statements]; see People v Cotto, 92NY2d at 79; People v Brooks, 71 NY2d at 878 [2- to 2
The defendant's remaining contention, which is based on the concurring opinion in People v Cummings (31 NY3d204 [2018]), is without merit (seeJiannaras v Alfant, 124 AD3d 582, 586 [2015], affd 27 NY3d 349 [2016]).Austin, J.P., Cohen, Brathwaite Nelson and Iannacci, JJ., concur.