| People v Bush |
| 2020 NY Slip Op 03568 [184 AD3d 1003] |
| June 25, 2020 |
| Appellate Division, Third Department |
[*1](June 25, 2020)
| The People of the State of New York,Respondent, v Jerry W. Bush, Appellant. |
Craig S. Leeds, Albany, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered November 28, 2016, upon a verdict convicting defendant of the crimes of endangeringthe welfare of an incompetent or physically disabled person in the first degree, assault in thesecond degree and official misconduct.
Defendant was employed by the Office for People with Developmental Disabilities andworked at a residential facility in Franklin County. Defendant was charged in a multicountindictment stemming from an incident where he and other staff members struck and hit a facilityresident (hereinafter the victim) causing him injuries. Defendant and some of the staff memberswere tried together in a joint jury trial and were represented by the same counsel. Following thetrial, defendant was acquitted on the count of assault in the third degree, but was convicted ofendangering the welfare of an incompetent or physically disabled person in the first degree,assault in the second degree and official misconduct. Defendant's subsequent CPL 330.30 motionto set aside the verdict was denied. County Court thereafter sentenced defendant to a term ofimprisonment. Defendant appeals. We affirm.
Defendant argues that the evidence was not legally sufficient to support the verdict. "Averdict is legally insufficient when, viewing the record in the light most favorable to theprosecution, there is no valid line of reasoning and permissible inferences from which a rationaljury could have found the elements of the crime proved beyond a reasonable doubt" (People v Arhin, 165 AD3d 1487,1488 [2018] [internal quotation marks and citations omitted]; see People v Novak, 148 AD3d 1352, 1354 [2017], lvdenied 29 NY3d 1084 [2017]). Contrary to defendant's assertion that the People failed toprove that the victim was physically disabled or suffered from a mental disease or defect asrequired for the crime of endangering the welfare of an incompetent or physically disabled personin the first degree (see Penal Law § 260.25), the record discloses that, whenthe victim was a child, he fell from a train engine and, as a consequence, was in a coma andsuffered a traumatic brain injury. The victim testified that his education level was that of a fifthgrader and that he has engaged in self-injurious behavior in the past, including hitting his headagainst a wall. The victim's grandmother, who was the victim's legal guardian, stated that thevictim first went to a group home when he was 16 or 17 years old. The victim has resided in thecurrent facility for over three years, which is a place for developmentally disabled people whohave backgrounds of mental handicaps. The duties of some aides who worked at the facilityincluded helping residents progress through their programs and assisting them with their dailytasks, such as bathing, brushing their teeth, eating properly or making their bed. In view of thisevidence, defendant's argument is without merit.
Defendant also contends that, with respect to the charge of assault in the second degree, theevidence was not legally sufficient to establish that he caused the victim's injuries (seePenal Law § 120.05 [6]) and that, with respect to the charge of official misconduct,the evidence did not show that he failed to accomplish any duty (see Penal Law§ 195.00 [2]). We disagree. The victim testified that, after becoming angry andknocking over his food, he was initially restrained by staff members. Defendant[FN1] and the codefendants alsoresponded to the scene, replaced the staff members and took the victim to a "time-out room." Aformer employee who was working at the time of the incident testified that he was able toobserve the victim in the time-out room. He saw a struggle ensue between the victim anddefendant and the codefendants, with defendant holding the victim's left arm while onecodefendant had the victim in a choke hold. The victim stated that defendant and thecodefendants punched and kicked him in the shoulder, back, face and genital area. Hespecifically testified that he believed that defendant hit him in the face. The former employeestated that the victim was gagging and that his face was turning red. The former employee alsostated that he heard one codefendant say after the struggle, "I'm glad we loosened that f. . . er up." The victim was taken to the emergency room and he stated that heexperienced pain in his jaw following this incident. The grandmother visited the victim the dayafter the incident and she observed that his face was black and blue and swollen on the left side.Other witnesses, including a nurse, likewise testified that they observed the victim with swellingand bruises.[FN2]
Viewing the evidence in the light most favorable to the People, we are satisfied that theevidence was legally sufficient to support the charges of assault in the second degree and officialmisconduct (see generally People v Contes, 60 NY2d 620, 621 [1983]). The recordcontains evidence that defendant was a state employee whose duties included supervising thevictim and helping him with his daily activities. Furthermore, the victim suffered swelling andbruises after being struck by defendant and the codefendants. We also note that it was notnecessary for the People to prove that defendant himself caused the victim's injuries. Rather, forassault in the second degree as charged in the indictment, the People had to show that defendant"or another participant if there be any" caused the injuries while in the course or in thefurtherance of committing another felony (Penal Law § 120.05 [6]).
As to defendant's argument that the verdict was against the weight of the evidence, a contraryresult would not have been unreasonable in view of the proof submitted by defendant that he didnot punch or strike the victim (seePeople v Colon-Velazquez, 172 AD3d 1621, 1622 [2019], lv denied 34 NY3d929 [2019]). Nevertheless, the jury was free to reject this proof and credit the testimony given bythe People's witnesses (see People vBrinkley, 174 AD3d 1159, 1162 [2019], lv denied 34 NY3d 979 [2019]; People v Mamadou, 172 AD3d1524, 1525 [2019], lv denied 33 NY3d 1106 [2019]). To the extent that defendantcontends that the victim was unworthy of belief due to his cognitive limitations, the jury was inthe best position to observe and assess the victim's credibility (see People v Cubero, 160 AD3d1298, 1300-1301 [2018], affd 34 NY3d 976 [2019]). Viewing the evidence in aneutral light and weighing the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that can be drawn from the trial testimony, as well as takinginto account that we defer to the jury's credibility determinations (see People v Sloley, 179 AD3d1308, 1310-1311 [2020], lv denied 35 NY3d 974 [2020]), we cannot say that theverdict was against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant argues that the victim was incompetent due to a mental defect and, therefore,County Court erred in permitting him to testify. A witness older than nine years old may givetestimony under oath unless the court is satisfied that this witness cannot comprehend the natureof an oath due to a mental disease or defect (see CPL 60.20 [2]). "The resolution of theissue of witness competency is exclusively the responsibility of the trial court, subject to limitedappellate review" (People v Miller, 295 AD2d 746, 748 [2002] [internal quotation marksand citation omitted]). The court's extensive questioning of the victim and the responses theretodemonstrate that the victim knew the difference between telling the truth and a lie, understoodthe significance of an oath to tell the truth and appreciated the consequences if he lied under oath.In the absence of any evidence indicating that the victim failed to understand the nature of anoath, we find that the court did not abuse its discretion in allowing the victim to testify (seePeople v Scott, 86 NY2d 864, 865 [1995]; People v Blair, 32 AD3d 613, 614 [2006]; People v Arnold,177 AD2d 633, 634 [1991], lv denied 79 NY2d 853 [1992]).
Defendant contends that County Court erred when it sustained the People's hearsay objectionprecluding a witness from testifying that the former employee told the witness at a meeting thatdefendant was not involved in the assault on the victim. "[T]he credibility of any witness can beattacked by showing an inconsistency between his [or her] testimony at trial and what he [or she]has said on previous occasions. However, as this testimony is often collateral to the ultimateissue before the jury and bears only upon the credibility of the witness, its admissibility isentrusted to the sound discretion of the [court]" (People v Duncan, 46 NY2d 74, 80[1978] [citation omitted], cert denied 442 US 910 [1979]). For the proposed testimony tobe admissible under the prior inconsistent statement exception, defendant was required to lay aproper foundation by questioning the former employee about any inconsistencies between histrial testimony and the prior statement that he made to this witness and then giving him anopportunity to explain any inconsistencies (see id. at 80-81; People v Laurey, 24 AD3d 1107,1109 [2005], lv denied 6 NY3d 815 [2006]). Because defendant failed to lay the properfoundation to inquire into this alleged inconsistency, the court's ruling in sustaining the objectionwas not an abuse of discretion (seePeople v Maxam, 135 AD3d 1160, 1161-1162 [2016], lv denied 27 NY3d 1135[2016]; People v Carter, 227 AD2d 661, 663 [1996], lv denied 88 NY2d 1067[1996]). Although defendant also contends that the witness's proposed testimony was notcircumscribed by the general rules governing hearsay evidence because it went to the core issueof the case, this was not the basis of defendant's opposition to the People's hearsay objection.Rather, defendant's argument in favor of admitting proposed testimony was that "it goes directlyto the credibility of [the former employee]." As such, defendant's contention on appeal isunpreserved (see People v Johnson,172 AD3d 1628, 1633 [2019], lv denied 34 NY3d 951 [2019]). Were this issueproperly before us, we would find it to be without merit (compare People v Bradley, 99 AD3d 934, 937-938 [2012]).
We are unpersuaded by defendant's claim that County Court erred by failing to give acircumstantial evidence charge. Because there was both direct and circumstantial evidence of thevictim's injuries and how they were caused, a circumstantial evidence charge was not required tobe given (see People v Hardy, 26NY3d 245, 251 [2015]; People vAsh, 162 AD3d 1318, 1322 [2018], lv denied 32 NY3d 1002 [2018]). We alsofind that defendant's argument that the People committed a Brady violation to be withoutmerit. Specifically, defendant argues that the People failed to timely disclose that the formeremployee had a violation for driving while ability impaired (see Vehicle and Traffic Law§ 1192 [1]) and, as a consequence, he was unable to effectively cross-examine thiswitness. This traffic infraction, however, is not considered a criminal conviction forimpeachment purposes (see Vehicle and Traffic Law § 155). Accordingly,we conclude that the People did not run afoul of their Brady obligations.
Defendant's challenges to comments made by the prosecutor during opening and closingstatements are unpreserved in the absence of a timely objection thereto (see People v Brown, 169 AD3d1258, 1259 [2019], lv denied 33 NY3d 1029 [2019]). For similar reasons,defendant's assertion that certain jury instructions given by County Court were erroneous isunpreserved (see People v Taylor,163 AD3d 1275, 1277 [2018], lv denied 32 NY3d 1068 [2018]). Defendant,however, also argues that his counsel's failure to raise these objections amounted to deficientrepresentation. Contrary to defendant's assertion, neither the use of the phrase "I'm confident" bythe prosecutor in his opening statement nor his use of the proper noun "I" in his summationamounted to an expression of his personal belief of the case (see People v Franklin, 288AD2d 751, 755 [2001], lv denied 97 NY2d 728 [2002]). As to the prosecutor's othercomments on summation, the challenged remarks were either responsive to defense counsel'sremarks or fair comment on the evidence. Accordingly, any objection to these remarks wouldhave little or no chance of success (seePeople v Planty, 155 AD3d 1130, 1133 [2017], lv denied 30 NY3d 1118[2018]). Regarding the court's instructions referring to defendant's "guilt or innocence," althoughsuch comments were not ideal, we note that the court reminded the jury that the People bore theburden of proving defendant's guilt. When viewing the instructions in their totality, we cannotsay that counsel's failure to object to these remarks equated to deficient representation (see People v Castillo, 29 NY3d935, 937 [2017]). Defendant's other grievances with respect to the court's charges arelikewise unavailing and, therefore, any failure to object to them did not constitute ineffectiveassistance (see People v Perkins, 27AD3d 890, 893 [2006], lv denied 6 NY3d 897 [2006]).
Defendant additionally contends that his counsel was ineffective due to his jointrepresentation of him and the codefendants. The record, however, reflects that County Court helda Gomberg hearing prior to trial wherein the risks and pitfalls of joint representation werethoroughly explained. Defendant understood these risks and consented to the joint representation.Given that the record discloses that defendant waived any conflict of interest, his contention ofineffective assistance of counsel premised upon the joint representation is without merit (seePeople v Alexander, 255 AD2d 708, 709-710 [1998], lv denied 93 NY2d 897[1999]). Taking into account that defendant's counsel, among other things, made cogent openingand closing statements, offered proof in support of defendant's defense, vigorouslycross-examined the People's witnesses, moved to set aside the verdict and secured the acquittal ofone count in the indictment, we are unpersuaded by defendant's ineffective assistance of counselclaim (see People v Brown, 169 AD3d at 1260; People v Smith, 157 AD3d 978, 982 [2018], lv denied 31NY3d 1087 [2018]; People v Henry,129 AD3d 1334, 1336 [2015], lv denied 26 NY3d 930 [2015]).
Regarding the CPL 330.30 motion, defendant raised allegations of juror misconduct thatpurportedly occurred during jury deliberations.[FN3] A verdict may be set aside if "during the trialthere occurred, out of the presence of the court, improper conduct by a juror . . . ,which may have affected a substantial right of the defendant and which was not known to thedefendant prior to the rendition of the verdict" (CPL 330.30 [2]; see People v St. Louis, 20 AD3d592, 594 [2005], lv denied 5 NY3d 856 [2005]). Such motion, however, mustcontain "sworn allegations, whether by the defendant or by another person or persons, of theoccurrence or existence of all facts essential to support the motion" (CPL 330.40 [2] [a]).Because the motion was supported only by counsel's affirmation and an unsworn email from oneof the jurors, and not the requisite sworn allegations, it was correctly denied without a hearing(see People v Gouveia, 88 AD3d814, 816 [2011], lv denied 18 NY3d 957 [2012]; People v Simon, 178 AD2d447, 447 [1991], lv denied 79 NY2d 923 [1992]). In any event, the cursory claimspresented in the email fail to show that a substantial right of defendant was affected (see People v Hartle, 159 AD3d1149, 1154-1155 [2018], lv denied 31 NY3d 1082 [2018]; People v Mattis, 108 AD3d 872,876 [2013], lv denied 22 NY3d 957 [2013]). Defendant's remaining assertions, to theextent not discussed herein, have been examined and are without merit.
Egan Jr., J.P., Mulvey, Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant's title at the facilitywas a developmental disability secure care treatment aide whose responsibilities included, amongother things, assisting residents with behavioral interventions and daily living skills andsupervising and cooking for them.
Footnote 2:One staff member testified thatshe did not observe any injuries on the victim prior to when he was taken to the time-out room.
Footnote 3:Defendant also contended thatthe grandmother's testimony as to the alleged crime and the victim's medical condition washearsay and improper bolstering. Defendant, however, did not object to the grandmother'stestimony on these grounds and, therefore, such argument is unpreserved (see People vPadro, 75 NY2d 820, 821 [1990]).