| People v Benjamin |
| 2020 NY Slip Op 02952 [183 AD3d 1125] |
| May 21, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth D. Benjamin III, Appellant. |
John R. Trice, Elmira, for appellant.
Matthew VanHouten, District Attorney, Ithaca (Emily Perks Quinlan of counsel), forrespondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of TompkinsCounty (Miller, J.), rendered December 1, 2017, upon a verdict convicting defendant ofthe crimes of menacing a police officer or peace officer, menacing in the second degree,criminal possession of a weapon in the fourth degree and endangering the welfare of achild.
Defendant was charged by indictment with menacing a police officer or peaceofficer, menacing in the second degree, criminal possession of a weapon in the fourthdegree and endangering the welfare of a child based upon allegations concerning anincident that took place in February 2017 when defendant allegedly brandished a weaponat a Tompkins County Deputy Sheriff (hereinafter the deputy) and another person(hereinafter child's father) in the presence of the child. Following a jury trial, defendantwas convicted on all counts and sentenced to concurrent prison terms, the greatest ofwhich was four years followed by three years of postrelease supervision for hisconviction of menacing a police officer or peace officer. Defendant appeals.
Defendant contends that the jury's verdict as to the menacing charges and theendangering charge was against the weight of the evidence. "In determining whether[the] defendant's convictions were against the weight of the evidence, we first mustdetermine whether a different result would have been unreasonable; if not, we thenweigh conflicting testimony, reviewing any rational inferences that may be drawn fromthe evidence and evaluate the strength of such conclusions. Based on the weight of thecredible evidence, the Court then decides whether the jury was justified in finding thedefendant guilty beyond a reasonable doubt" (People v Jasiewicz, 162 AD3d 1398, 1399 [2018] [internalquotation marks, brackets and citation omitted], lv denied 32 NY3d 1005[2018]). "In conducting a weight of the evidence analysis, [this Court] must givedeference to the jury's credibility assessments" (People v Anatriello, 161 AD3d 1383, 1385 [2018] [citationomitted], lv denied 31 NY3d 1144 [2018]).
Regarding the two menacing charges, defendant asserts that the evidence failed toestablish that he intended to place or attempted to place the deputy or the child's father inreasonable fear of physical injury. "A person is guilty of menacing a police officer orpeace officer when he or she intentionally places or attempts to place a police officer orpeace officer in reasonable fear of physical injury, serious physical injury or death bydisplaying a . . . rifle . . . or other firearm, whether operable ornot, where such officer was in the course of performing his or her official duties and thedefendant knew or reasonably should have known that such victim was a police officeror peace officer" (Penal Law § 120.18). "A person is guilty of menacing inthe second degree when . . . [h]e or she intentionally places or attempts toplace another person in reasonable fear of physical injury . . . or death bydisplaying . . . what appears to be a . . . rifle . . . orother firearm" (Penal Law § 120.14 [1]).
The trial testimony established that the deputy received a dispatch to aid the child'sfather in removing the child—defendant's nephew—from a residence in theTown of Enfield, Tompkins County. The deputy, dressed in uniform and driving avehicle with Tompkins County Sheriff emblazoned on it, arrived at the residence beforethe child's father and observed defendant exit a silver Honda Civic and enter theresidence. Shortly thereafter, the child's father arrived at the residence and gave thedeputy a court order authorizing him to remove the child. While the deputy was readingthe order, the child's mother—defendant's sister—confronted the child'sfather, striking him in the chest and yelling "don't take my little boy." The deputycommanded defendant's sister to go inside the house, and she complied. Defendant thencame running out of the house and attempted to punch the child's father in the face.Defendant then went to his car, reached into it and pulled out a rifle. Although theevidence would later establish that the gun was not capable of firing bullets, the deputytestified that she did not know this at the time. The deputy further testified that she wasstanding approximately three to five feet from defendant when he pointed the rifle at herhip or abdominal area and at the child's father, who was standing approximately 10 to 15feet away from her. She further stated that the event was "shocking" and it made her"very nervous and scared." The child's father testified similarly, stating that, when hearrived at the residence to retrieve the child, defendant's sister charged at him, punchinghim in the chest. He stated that she then went back into the house and defendant cameoutside, attempted to strike him and, when this attempt proved futile, defendant retrieveda rifle from the back seat of the car and charged him and the deputy. He further averredthat defendant "definitely" pointed the rifle at him and the deputy, and that he feared forhis safety and believed that defendant was going to shoot him and that the deputy wasgoing to shoot defendant.
Defendant called three witnesses. A tenant of the residence testified that he sawdefendant holding the rifle while the deputy was present, but he did not recall whetherdefendant aimed the rifle in the direction of the deputy or the child's father. Defendant'sniece testified that defendant retrieved the rifle from the car, but pointed it at his feet andwalked into the house, and he did not point the rifle at the deputy or the child's father.Finally, defendant's sister testified that defendant carried the rifle from the car to theinside of the residence with the barrel facing upwards.
Although a different verdict would not have been unreasonable based on theinconsistent versions of whether defendant pointed the rifle at the deputy and the child'sfather, viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations (see People vWatkins, 180 AD3d 1222, 1231 [2020]), we find that these convictions were notagainst the weight of the evidence. It is undisputed that defendant grabbed the rifle fromthe car during a heated dispute with the deputy and the child's father and he did so intheir presence. Both the deputy and the child's father testified that the rifle was pointed atthem and they feared for their safety. "Intent may be inferred from a defendant's conductand from the surrounding circumstances" (People v McCottery, 90 AD3d 1323, 1324 [2011] [internalquotation marks and citations omitted], lv denied 19 NY3d 975 [2012]; see People v Ullah, 130 AD3d759, 760 [2015], lv denied 26 NY3d 1043 [2015]).
As to his conviction for endangering the welfare of a child, defendant contends thatthere was no proof establishing that the child saw any of the confrontation that occurredoutside of the residence. "A person is guilty of endangering the welfare of a child when. . . [h]e or she knowingly acts in a manner likely to be injurious to thephysical, mental or moral welfare of a child less than [17] years old" (Penal Law§ 260.10 [1]). The deputy testified that, when defendant went into theresidence, she pursued him and found the rifle to the left of the open main doorwayentrance where there were three or four children who had been watching the situationunfold. She had her taser unholstered and displayed when defendant complied with hercommands to put his hands in the air. The deputy further testified that the children wereall "hysterical"; they cried, grasped onto defendant's sister and tried to shut the door onthe deputy. The child's father testified that, during the incident, the child was holding onto his mother's leg, scared and crying. A jury could reasonably conclude that this tenseand hostile confrontation involving weapons was likely to be injurious to the physical,mental or moral welfare of the child. Giving deference to the jury's credibilitydeterminations, we find that the verdict as to this conviction was not against the weightof credible evidence (see Peoplev Santana, 179 AD3d 1299, 1301 [2020]).
Lastly, defendant argues that his sentence was harsh and excessive because nophysical harm came to anyone and because of his traumatic background. "Sentencinggenerally rests within the discretion of the trial court . . . and a legallypermissible sentence will not be disturbed absent an abuse of the sentencing court'sdiscretion or extraordinary circumstances" (People v Turner, 172 AD3d 1768, 1773 [2019] [internalquotation marks and citations omitted], lv denied 34 NY3d 939 [2019]). Therecord discloses that County Court took into consideration statements from defendant'sfriends and family, and his traumatic childhood, criminal history and drug abuse, whileexplaining to defendant that he did not show remorse, lacked concern over his dangerousconduct and the deputy's well-being and that his anger is problematic. Under thecircumstances, there are no extraordinary circumstances or abuse of discretion warrantinga reduction of the sentence.
Garry, P.J., Egan Jr., Lynch and Mulvey, JJ., concur. Ordered the judgment isaffirmed.