| People v Stover |
| 2019 NY Slip Op 05726 [174 AD3d 1150] |
| July 18, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raekwon Stover, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Schenectady County (Sira, J.),rendered December 18, 2017, upon a verdict convicting defendant of the crime of assault in thesecond degree.
On March 4, 2017, defendant was involved in a physical altercation with another inmate(hereinafter the victim) while housed at the Schenectady County Correctional Facility. As a resultof this conduct, defendant was charged by indictment with assault in the second degree.Following a jury trial, defendant was convicted as charged and was later sentenced to five yearsin prison followed by three years of postrelease supervision. Defendant appeals.
Initially, we find that County Court properly denied defendant's motion to dismiss theindictment on the ground that the grand jury proceeding was defective for failure to conform tothe requirements of CPL article 190. Dismissal of an indictment on this basis "is a drastic,exceptional remedy and should thus be limited to those instances where prosecutorialwrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached bythe [g]rand [j]ury" (People vSutherland, 104 AD3d 1064, 1066 [2013] [internal quotation marks and citationsomitted]; see People v Huston, 88 NY2d 400, 409 [1996]). Upon our review of the grandjury minutes, we find no irregularities or improprieties warranting dismissal of the indictment(see CPL 190.25, 190.30; Peoplev Newman, 169 AD3d 1157, 1157-1158 [2019]; People v Malloy, 166 AD3d 1302, 1304 [2018], lv granted32 NY3d 1180 [2019]).[FN1]
Defendant next asserts that his conviction was not supported by legally sufficient evidenceand was against the weight of the evidence, in that the People failed to establish that the victimsuffered a physical injury or that defendant intended to cause such injury. Although defendantfailed to preserve his legal sufficiency claim as to the element of intent, we must neverthelessdetermine whether all of the elements of the charged crime were proven beyond a reasonabledoubt as part of our weight of the evidence review (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Johnson, 150 AD3d1390, 1394 n 2 [2017], lv denied 29 NY3d 1128 [2017]). In this regard, a person is"guilty of assault in the second degree when, 'having been charged with or convicted of a crimeand while confined in a correctional facility,' he or she intended to cause physical injury toanother person and does cause such injury" (People v Ford, 156 AD3d 1242, 1243 [2017] [brackets omitted],quoting Penal Law § 120.05 [7], lv denied 31 NY3d 1013 [2018]). Aspertinent here, a physical injury may be established by evidence that the victim suffered"substantial pain" (Penal Law § 10.00 [9]), and "while slight or trivial pain isinsufficient, the pain need not, however, be severe or intense to be substantial" (People v Williams, 46 AD3d 1115,1115 [2007] [internal quotation marks, brackets and citations omitted], lv denied 10NY3d 818 [2008]; see People vDiaz, 163 AD3d 110, 113 [2018], lv denied 32 NY3d 1110 [2018]). Indetermining whether a physical injury has occurred, factors considered "include the injuryviewed objectively, the victim's subjective description of the injury and his or her pain, andwhether the victim sought medical treatment" (People v Hicks, 128 AD3d 1221, 1222 [2015] [internal quotationmarks, brackets and citation omitted], lv denied 26 NY3d 930 [2015]; accord Peoplev Johnson, 150 AD3d at 1393). As to intent, it is well established that a defendant's intentmay be inferred from the totality of the circumstances presented and the natural and probableconsequences of his or her actions (see People v Steinberg, 79 NY2d 673, 684-685[1992]; People v Coleman, 151AD3d 1385, 1386 [2017], lv denied 29 NY3d 1125 [2017]).
At trial, the parties stipulated that defendant had been confined to the correctional facility onan unrelated charge at the time of the incident. As to the remaining elements of the crime, thePeople presented a video of the attack, the victim's medical records and photographs of hisinjuries, and the testimony of multiple correction officers and an investigator with the DistrictAttorney's office. Video footage of the incident taken from the facility's security system wasplayed for the jury. The video shows defendant, as identified by multiple officers, approach thevictim from behind, as the victim is seated at a table, and punch him with a closed fist.[FN2] The victim responds only byblocking two of defendant's three punches. Following the attack, the victim immediately places ahand on his face and retrieves an item—presumed to be a magazine—from a celland hands it to defendant. The victim then, while continuing to hold his head, cleans up bloodfrom the table and floor where he had been sitting. A correction officer testified that he laterdiscovered the victim in the shower room and observed blood dripping down the victim's facefrom a laceration above his right eye. It did not appear that he had slipped and fallen whileshowering, as his clothing was dry. Correction officers thereafter checked the hands of allinmates in the area for signs of trauma, indicating involvement in a fight. Only defendant's handsappeared red and swollen. The victim was later sent to a hospital for evaluation andtreatment.
Hospital records reveal that the victim reported having been punched in the face by anotherinmate. He indicated pain levels of 4 and 9 on a scale of 10, and required pain medication andfive stitches to close the laceration above his right eye, which had swelling. No further testingwas done at that time. On March 7, 2017, three days after the incident, an X ray of the victim'sface was taken, which showed an injury of the "[victim's] right orbit compatible with a mildlydisplaced fracture." A CT scan conducted on March 17, 2017 indicated that "acute fractures[were] seen involving the [victim's] right lateral orbit wall . . . [and] [a]cute mildlycomminuted fractures [were] noted involving the right anterior and lateral maxillary sinus walls."A correction officer testified that the victim did not appear to have any injuries to his face uponhis arrival at the correctional facility three days prior to the incident; photographs taken duringthe booking process similarly revealed no injuries at that time. No evidence was presentedindicating that the victim had been otherwise injured between the time of the incident and thedates of the medical testing. The victim and defendant did not testify.
To the extent that defendant preserved the claim of legal insufficiency, viewing the facts in alight most favorable to the People, there is a "valid line of reasoning and permissible inferences"from which a rational jury could have found the elements of the crime proved beyond areasonable doubt (People v Travis, 273 AD2d 544, 546 [2000] [internal quotation marksand citation omitted]; see Penal Law § 120.05 [7]; see People v Jennings, 20 AD3d777, 777-778 [2005], lv denied 5 NY3d 829 [2005]). In reviewing the weight of theevidence, this Court, after determining that a different verdict would not be unreasonable, "must,like the trier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]).Viewing the evidence in a neutral light and deferring to the jury's credibility assessments, we findthat defendant's conviction is supported by the weight of the evidence (see People v Chiddick, 8 NY3d445, 446 [2007]; People vMamadou, 172 AD3d 1524, 1525-1526 [2019]; People v Johnson, 150 AD3d at1393-1394; People v Alexander,127 AD3d 1429, 1431 [2015], lv denied 25 NY3d 1197 [2015]).
County Court did not err in admitting the victim's March 7, 2017 medical records intoevidence by certification. As pertinent here, properly certified medical records of "a departmentor bureau . . . of the state . . . relating to the condition or treatment of apatient" are admissible by certification under the business records exception to the hearsay ruleand constitute prima facie evidence of the facts contained therein (CPLR 2306 [a]; seeCPLR 4518 [a], [c]; Maxcy v County of Putnam, 178 AD2d 729, 730 [1991], lvdismissed 80 NY2d 826 [1992]). Such records may be certified "by the head of the. . . department or bureau . . . of the state, or by an employee delegatedfor that purpose" (CPLR 4518 [c]). Here, the record reflects that the correctional facility contractswith Mobile Imagining Ltd., a medical imaging company, in its regular course of business as partof its medical care of inmates. The medical record at issue, an X ray report of the victim's righteye, was produced by Mobile Imaging Ltd. at the correctional facility and at its request. Contraryto defendant's contentions, the certification accompanying the record complied with CPLR 4518(c), as it was executed by the correctional facility's designated custodian of medical records.
Next, defendant claims that he was improperly denied a missing witness charge as to thevictim, who refused to testify. Where warranted, a missing witness charge permits "a jury to drawan unfavorable inference based on a party's failure to call a witness who would normally beexpected to support that party's version of events" (People v Savinon, 100 NY2d 192, 196[2003]). Here, defendant's request was properly denied. The victim, who had been subpoenaed bythe People and appeared in court, refused to testify despite being admonished by County Courtthat he could be held in contempt as a result (see People v Baldwin, 35 AD3d 1088, 1091-1092 [2006]; People v Washington, 21 AD3d648, 649 [2005], lv denied 6 NY3d 839 [2006]).
Finally, we find no merit in defendant's argument that the sentence imposed was harsh andexcessive. Considering his criminal history and failure to accept responsibility, as well as the factthat he was confined at the time of the crime on a separate charge, we find no abuse of discretionor extraordinary circumstances warranting a reduction of the sentence, which was below themaximum allowed (see Penal Law § 70.02; People v Wright, 160 AD3d 1110,1113 [2018], lv denied 31 NY3d 1154 [2018]; People v Clark, 159 AD3d 1148, 1148 [2018]).
Egan Jr., Clark, Devine and Pritzker, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:To the extent that defendantrequests that this Court release the grand jury minutes to his appellate counsel to allowsupplemental briefing on this issue, such relief should have been requested by a motion on noticeto the People requesting such disclosure in furtherance of the appeal (see generally Rulesof App Div, All Depts [22 NYCRR] § 1250.4).
Footnote 2:A third individual who is visiblein the video was deceased at the time of trial.