| People v Harris |
| 2020 NY Slip Op 04431 [186 AD3d 907] |
| August 6, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Coreen Harris, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered June 13, 2017in Albany County, upon a verdict convicting defendant of the crimes of assault in the first degree,assault in the second degree and criminal possession of a weapon in the third degree.
In 2016, based upon allegations that he attacked the victim with a filet knife, causing woundsto the victim's nose, cheek and chest, defendant was charged with assault in the first degree,attempted assault in the first degree, assault in the second degree and criminal possession of aweapon in the third degree. Following a jury trial,[FN1] The People introduced evidence that defendantfled the area after the incident and was ultimately apprehended, with a broken ankle, in QueensCounty by a United States Marshal.
Defendant testified on his own behalf and offered a different version of events than thevictim, stating that it was the victim who had initiated the altercation and had first attacked himwith a knife. Defendant asserted that he broke his ankle during a physical struggle with thevictim, that he grabbed the filet knife off the kitchen counter and, acting in self-defense, cut andstabbed the victim. However, the photographs depicting the aftermath of the scene, as well as thepolice testimony describing the state of the home after the incident, were inconsistent with astruggle having taken place as described by defendant. Defendant's testimony was furtherundercut by a recorded jail phone call, which was admitted into evidence and arguably indicatedthat defendant had actually broken his ankle sometime after he fled to Queens County.
Inasmuch as defendant's convictions hinged on the jury's credibility determinations, adifferent verdict would not have been unreasonable (see People v Dale, 115 AD3d 1002, 1006 [2014]). However, thejury clearly resolved the credibility issues against defendant and in favor of the People. Viewingthe evidence in a neutral light and according deference to the jury's credibility determinations (see People v Pine, 126 AD3d1112, 1114 [2015], lv denied 27 NY3d 1004 [2016]), we find that the weight of theevidence supports the jury's rejection of defendant's justification defense, as well as itsdetermination that defendant knowingly possessed the filet knife with an intent to use itunlawfully—that is, to injure the victim (see Penal Law§§ 120.05 [2]; 265.01 [2]; People v Robinson, 121 AD3d 1405, 1407 [2014], lvdenied 24 NY3d 1221 [2015]; People v Dale, 115 AD3d at 1006).[FN3]
We next turn to the question of whether the victim's two facial scars constitute a seriousphysical injury, so as to support defendant's conviction for assault in the first degree.[FN4] As relevant here, a seriousphysical injury includes a "physical injury . . . which causes . . . seriousand protracted disfigurement" (Penal Law § 10.00 [10]). To qualify as a seriousdisfigurement, the scars must be "objectively 'distressing or objectionable' " to thereasonable observer (People vStewart, 18 NY3d 831, 832 [2011], quoting People v McKinnon, 15 NY3d 311, 315 [2010]). The nature of theinjury is not the only relevant consideration; rather, "the injury must be viewed in context,considering its location on the body and any relevant aspects of the victim's overall physicalappearance" (People v McKinnon, 15 NY3d at 315).
The testimonial, photographic and documentary evidence demonstrated that the victimsustained a laceration to his right cheek that was approximately four centimeters long, as well asa similarly sized laceration transversing the tip of his nose to his right nostril. Both lacerationswere sutured by a plastic surgeon. Although the evidence clearly demonstrated the locations ofthe lacerations and their size prior to and immediately after suturing, the record is imprecise as tothe extent and appearance of any resulting facial scars. The People did not introduce aphotograph depicting the victim's nose and right cheek at the time of trial or any time after thesutures had been removed and the lacerations healed (compare People v Andrews, 127 AD3d 1417, 1419-1420 [2015],lv denied 25 NY3d 1159 [2015]). Further, although the physician who treated the victimtestified that the victim was expected to have facial scars and the victim did in fact display facialscars to the jury, the People failed to make a contemporaneous record of what the jury observed,so as to demonstrate the extent and appearance of those scars (see People v McKinnon,15 NY3d at 316; People v Marshall,162 AD3d 1110, 1114 [2018], lv denied 31 NY3d 1150 [2018]). Moreover, despitetheir prominent locations, there is no indication that the relatively small facial lacerationsproduced jagged, uneven or "unusually disturbing" scars (People v McKinnon, 15 NY3dat 316; compare People v Andrews, 127 AD3d at 1419-1420). In the absence of aphotograph depicting the victim's facial scars or an on-the-record description of the victim's scarsat the time of trial, we cannot conclude that the record evidence supports a finding of seriousdisfigurement (see People v McKinnon, 15 NY3d at 316; People v Marshall, 162AD3d at 1114; compare People v Andrews, 127 AD3d at 1419-1420; People vRobinson, 121 AD3d at 1407; People v Johnson, 23 AD3d 686, 687-688 [2005], lv denied6 NY3d 895 [2006]). Accordingly, we are constrained to conclude that defendant's conviction forassault in the first degree is not supported by the weight of the evidence (see People vMarshall, 162 AD3d at 1113-1114).
The evidence credited by the jury nonetheless supports the conclusion that defendantintended to inflict serious physical injury upon the victim and that defendant used the filet knifein a manner that could have resulted in serious physical injury to the victim (see generallyPeople v Pine, 126 AD3d at 1114, 1115 n 3). Indeed, the victim testified that defendantthreatened to kill him during the attack and defendant's intent can otherwise be inferred from thecircumstances and his conduct (see People v Pine, 126 AD3d at 1114; People v Brown, 100 AD3d 1035,1037-1038 [2012], lv denied 20 NY3d 1009 [2013]). As such, we reduce defendant'sconviction of assault in the first degree to the lesser included offense of attempted assault in thefirst degree, vacate the sentence imposed thereon and remit the matter to Supreme Court forresentencing on the reduced count (see Penal Law §§ 120.05 [2];120.10 [1]; CPL 470.20 [4]; People v Marshall, 162 AD3d at 1114).
Defendant's remaining contentions do not require extended discussion. We are unpersuadedby defendant's assertion that Supreme Court abused its discretion in fashioning aSandoval compromise, which permitted the People to cross-examine defendant as to theexistence of his two prior class E felony convictions, the dates of such convictions and the factthat the convictions arose out of Queens County; such compromise ruling properly balanceddefendant's right to a fair trial against the People's right to impeach defendant's credibility (see People v Anthony, 152 AD3d1048, 1051 [2017], lv denied 30 NY3d 978 [2017]). Defendant's further contentionthat he was entitled to a temporary lawful possession charge is unpreserved for our review(see CPL 470.05 [2]; People vAdams, 90 AD3d 1508, 1509 [2011], lv denied 18 NY3d 954 [2012]) and, inany event, wholly without merit (seePeople v Britton, 27 AD3d 1014, 1015 [2006], lv denied 6 NY3d 892 [2006]).Finally, given that defendant's conviction on the top count of the indictment has been reducedand the matter must be remitted to Supreme Court for resentencing, defendant's contention thathis sentence was harsh and excessive is academic (see People v Brown, 100 AD3d at1037-1038; People v Molano, 70AD3d 1172, 1177 [2010], lv denied 15 NY3d 776 [2010]). Defendant's remainingarguments, to the extent not expressly addressed herein, have been reviewed and found to bewithout merit.
Garry, P.J., Mulvey, Aarons and Colangelo, JJ., concur. Ordered that the judgment ismodified, on the facts, by reducing defendant's conviction for assault in the first degree undercount 1 of the indictment to attempted assault in the first degree; vacate the sentence imposed onsaid conviction and matter remitted to the Supreme Court for resentencing; and, as so modified,affirmed.
Footnote 1:A prior jury trial ended in amistrial.
Defendant argues that the jury verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence. However, defendant's legal sufficiency challenge is notpreserved for our review, as defendant did not raise the arguments upon which he now relieswhen he moved for a trial order of dismissal (see People v Daniels, 174 AD3d 955, 956 [2019], lvdismissed 34 NY3d 950 [2019]; People v Vanderhorst, 117 AD3d 1197, 1198 [2014], lvdenied 24 NY3d 1089 [2014]). Nevertheless, during the course of this Court's weight of theevidence review, we necessarily determine whether each element of the crimes were provenbeyond a reasonable doubt and, because defendant raised a justification defense at trial, whetherthe People proved that defendant's conduct was not justified (see People v Hernandez, 165 AD3d 1473, 1473 [2018]; Peoplev Vanderhorst, 117 AD3d at 1198).
As relevant here, to obtain a conviction for assault in the first degree, the People bear theburden of proving that, "[w]ith intent to cause serious physical injury to another person, [thedefendant] cause[d] such injury to such person . . . by means of a deadly weapon ora dangerous instrument" (Penal Law § 120.10 [1]). For a conviction of assault in thesecond degree, the People must prove that, "[w]ith intent to cause physical injury to anotherperson, [the defendant] cause[d] such injury to such person . . . by means of adeadly weapon or a dangerous instrument" (Penal Law § 120.05 [2]). For aconviction of criminal possession of a weapon in the third degree, the People have to prove thatthe defendant was previously convicted of a crime and that he or she has committed the offenseof criminal possession of a weapon in the fourth degree (see Penal Law§ 265.02 [1]), which requires, as relevant here, proof that the defendant knowingly"possesse[d] any dagger, dangerous knife, dirk, . . . razor . . . or anyother dangerous or deadly instrument or weapon with intent to use the same unlawfully againstanother" (Penal Law § 265.01 [2]). A dangerous instrument includes "anyinstrument . . . which, under the circumstances in which it is used, . . .is readily capable of causing death or other serious physical injury" (Penal Law§ 10.00 [13]).
The evidence, including defendant's own testimony, indisputably established that defendantslashed the victim in the face, causing lacerations across the victim's nose and right cheek, andstabbed the victim in the chest with a kitchen filet knife. At trial, defendant asserted that he actedin self-defense and that, therefore, his use of the knife was justified. Given defendant's invocationof the justification defense, the People bore the burden of proving beyond a reasonable doubt thatdefendant was not justified in using deadly physical force against the victim (see People v Umali, 10 NY3d 417,425 [2008], cert denied 556 US 1110 [2009]; People v Every, 146 AD3d 1157, 1161 [2017], affd 29NY3d 1103 [2017]). A defendant is justified in using deadly physical force when he or she is notthe initial aggressor and he or she reasonably believes that such force is necessary to defendhimself or herself from what he or she reasonably believes to be the use or imminent use ofdeadly physical force (see Penal Law § 35.15 [1], [2]; People vEvery, 146 AD3d at 1161; People vFisher, 89 AD3d 1135, 1137 [2011], lv denied 18 NY3d 883 [2012]).
The evidence established that defendant and the victim were the only two people presentduring the altercation that led to the victim's injuries. The victim testified that, in January 2016,he and his girlfriend went to dinner at the home of defendant and defendant'sgirlfriend—who was the mother of the victim's girlfriend. The victim stated that bothwomen left to buy cigarettes and that, thereafter, without provocation, defendant attacked himwith a filet knife, slashing him in the face and stabbing him in the chest. The victim testified thathe grabbed a chair and placed it between himself and defendant, but that defendant nonethelesscontinued to advance toward him, threatening to kill him. According to the victim, the womenarrived home in the middle of the attack, at which point defendant slipped out of the house. Thevictim and the victim's girlfriend testified that they left the house and sought police interventionand medical assistance. Photographs taken of the scene, as well as police testimony regarding thestate of the home shortly after the incident, were consistent with the victim's version ofevents.
As evidence of defendant's motive and intent, the victim and the victim's girlfriend testifiedto an incident that had taken place over Easter in 2015, which had led to months of estrangementfrom defendant and defendant's girlfriend. Specifically, they testified that the victim had gotteninto a physical altercation with his girlfriend's sister, which prompted an angry and threateningvisit from defendant and defendant's girlfriend.[FN2]Contrary to defendant's contention, SupremeCourt did not abuse its discretion in allowing the People to elicit testimony regarding the Easter2015 incident and defendant's threatening acts after the incident, as such testimony was relevantto establishing defendant's motive and intent, provided necessary background and context to therelationship between defendant and the victim and was more probative than prejudicial (see People v Pitt, 170 AD3d 1282,1284 [2019], lv denied 33 NY3d 1072 [2019]).
Footnote 3:Outside the presence of the jury,defendant was arraigned on a special information alleging that he had been previously convictedof attempted criminal possession of a weapon in the third degree, a felony offense. Defendantadmitted to that prior felony conviction (see CPL 200.60 [3] [a]), thereby elevating theoffense of criminal possession of a weapon in the fourth degree to criminal possession of aweapon in the third degree (see Penal Law § 265.02 [1]).
Footnote 4:The evidence established that thevictim's chest laceration was "not significantly deep" and that the knife did not penetrate thevictim's chest cavity or injure any organs or blood vessels. Finding that the chest wound was nota serious physical injury and/or that defendant did not intend to inflict a serious physical injuryby stabbing the victim in the chest, the jury acquitted defendant of the charge of attempted assaultin the first degree and convicted him instead of assault in the second degree. Such conviction isamply supported by the weight of the evidence (see Penal Law § 120.05[2]).