| People v Ruvalcaba |
| 2020 NY Slip Op 05354 [187 AD3d 1553] |
| October 2, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Appellant, v Damion R. Ruvalcaba, Respondent. |
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forappellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-respondent.
Appeal from an order of the Monroe County Court (Sam L. Valleriani, J.), dated April 5,2019. The order, insofar as appealed from, granted in part defendant's omnibus motion andreduced count one of the indictment to criminal obstruction of breathing or bloodcirculation.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw, that part of defendant's omnibus motion seeking to dismiss or reduce count one of theindictment is denied, count one of the indictment is reinstated, and the matter is remitted toMonroe County Court for further proceedings on the indictment.
Memorandum: The People appeal from an order granting that part of defendant's omnibusmotion seeking to dismiss or reduce count one of the indictment, charging the crime ofstrangulation in the second degree (Penal Law § 121.12), by reducing that count tocriminal obstruction of breathing or blood circulation (§ 121.11). The charges arosefrom an incident in which defendant allegedly choked and assaulted his girlfriend in the presenceof their infant daughter. County Court determined, based on its review of the grand jury minutes,that "[t]he People's theory of prosecution as presented to the grand jury was that defendantcommitted strangulation in the second degree by choking the alleged victim thereby causing her'stupor.' " The court further concluded that the grand jury proceeding was defective withrespect to the strangulation charge because "[t]he prosecutor did not offer a definition of thenecessary element of stupor to the grand jury." Based on its determination that the evidence waslegally sufficient "to establish defendant's commission of the lesser included offense of criminalobstruction of breathing or blood circulation," however, the court reduced the charge ofstrangulation in the second degree to criminal obstruction of breathing or blood circulation. Wereverse the order insofar as appealed from.
We agree with the People that the court erred in determining that the failure of the prosecutorto offer a definition of the term "stupor" rendered the grand jury proceedings defective withrespect to the charge of strangulation in the second degree. A grand jury proceeding is defectiveif it "fails to conform to the requirements of [CPL] article [190] to such degree that the integritythereof is impaired and prejudice to the defendant may result" (CPL 210.35 [5]). "[D]ismissal ofan indictment under CPL 210.35 (5) must meet a high test and is limited to instances ofprosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimatedecision reached by the [g]rand [j]ury" (People v Sheltray, 244 AD2d 854, 855 [4th Dept1997], lv denied 91 NY2d 897 [1998] [internal quotation marks omitted]; see Peoplev Huston, 88 NY2d 400, 409 [1996]). A grand jury "need not be instructed with the samedegree of precision that is required when a petit jury is instructed on the law," and it is "sufficientif the [prosecutor] provides the [g]rand [j]ury with enough information to enable it intelligentlyto decide whether a crime has been committed and to determine whether there exists legallysufficient evidence to establish the material elements of the crime" (People v Calbud,Inc., 49 NY2d 389, 394-395 [1980]).
In order to sustain the charge of strangulation in the second degree against defendant, thePeople were required to present to the grand jury legally sufficient evidence of the followingthree elements: (1) that defendant applied pressure on the throat or neck of the alleged victim; (2)that defendant did so with the intent to impede the normal breathing or circulation of the blood ofthe alleged victim; and (3) that defendant thereby caused stupor, loss of consciousness for anyperiod of time, or any other physical injury or impairment to the alleged victim (see PenalLaw § 121.12; CJI2d[NY] Penal Law § 121.12).
Here, the prosecutor's instructions to the grand jury comported with the statute and mirroredthe pattern criminal jury instructions (see Penal Law § 121.12; CJI2d[NY]Penal Law § 121.12), and we conclude that the failure of the prosecutor to offer adefinition of the term "stupor" did not impair the integrity of the grand jury proceedings orpotentially prejudice defendant (see generally People v Talley, 273 AD2d 883, 883 [4thDept 2000], lv denied 95 NY2d 893 [2000]). The term "stupor" is not defined in thePenal Law (see generally §§ 10.00, 121.12), but we "presum[e] thatlawmakers have used words as they are commonly or ordinarily employed, unless there issomething in the context or purpose of the [statute] which shows a contrary intention" (People v Finley, 10 NY3d 647,654 [2008] [internal quotation marks omitted]). Like other statutory provisions, "those containedin the Penal Law are generally to be construed so as to give effect to their most natural andobvious meaning" (People vBurman, 173 AD3d 1727, 1727 [4th Dept 2019] [internal quotation marks omitted];see also § 5.00), and we conclude that the grand jury did not requireadditional instruction to apply the "most natural and obvious meaning" of the term "stupor" inreaching its conclusion (Burman, 173 AD3d at 1727 [internal quotation marks omitted]).Notably, the grand jury made no request for a definition or explanation of the meaning of thatterm.
We also agree with the People that the evidence before the grand jury was legally sufficientto sustain the charge of strangulation in the second degree. In reviewing the evidence before agrand jury, "a reviewing court must consider 'whether the evidence viewed in the light mostfavorable to the People, if unexplained and uncontradicted, would warrant conviction by a petitjury' " (People v Bello, 92 NY2d 523, 525 [1998], quoting People vJennings, 69 NY2d 103, 114 [1986]). Legally sufficient evidence is "competent evidencewhich, if accepted as true, would establish every element of an offense charged" (CPL 70.10 [1])."In the context of a [g]rand [j]ury proceeding, legal sufficiency means prima facie proof of thecrimes charged, not proof beyond a reasonable doubt . . . The reviewing court'sinquiry is limited to whether the facts, if proven, and the inferences that logically flow from thosefacts supply proof of every element of the charged crimes" (Bello, 92 NY2d at 526[internal quotation marks omitted]).
Here, the alleged victim testified before the grand jury that defendant "put both of his handsaround [her] neck and choked [her] until [she] could barely breathe anymore" and "was startingto lose consciousness." She was "pushed up against the wall and the door" and felt "[v]erylight-headed and kind of like—like there was a buzzing in [her] head and everything wasstarting to turn purple in [her] vision before—by the time [the alleged victim] got him tolet go." She fell to the ground and "started to gasp for air," and defendant kicked her in the headwhile she was on the ground. The alleged victim told defendant that she would call the police, towhich defendant responded: "No you're not because you're going to go to sleep." The allegedvictim testified that she suffered pain as a result of defendant hitting and choking her, whichlasted for a few days and that she took ibuprofen to manage her pain. During her testimony,which occurred five days after the incident, the alleged victim displayed to the grand jury thebruising that remained on her forehead, cheek, and left arm.
Even assuming, arguendo, that the People's theory of the case as presented to the grand jurywas, as the court determined, that defendant caused only stupor and no other physical injury orimpairment to the alleged victim, we conclude that her testimony that defendant applied pressureto her neck with the intent to impede her normal breathing or circulation of blood and that hecaused her to be able to barely breathe and to feel light-headed, to gasp for air, and to have purplevision provided legally sufficient evidence of stupor (see People v Manigault, 150 AD3d 1331, 1332-1333 [3d Dept2017], lv denied 29 NY3d 1130 [2017]).
Furthermore, we agree with the People that the prosecutor did not limit the People's case tothe theory that defendant caused "stupor" but not "any other physical injury or impairment" to thealleged victim (Penal Law § 121.12) and that the People were not required to solimit their theory. The harms resulting from the strangulation are stated disjunctively in thestatute and, based on our review of the grand jury minutes, we conclude that the People's theoryalso could have been that defendant caused "any other physical injury or impairment" to thealleged victim (id.), as set forth in the bill of particulars. Inasmuch as the alleged victimtestified that, as a result of defendant choking and striking her, she felt pain for several days andtook ibuprofen to manage the pain, we conclude that the evidence before the grand jury was alsolegally sufficient to establish that defendant caused "impairment of physical condition orsubstantial pain" (§ 10.00 [9]; see CJI2d[NY] Penal Law§ 121.12; People vTalbott, 158 AD3d 1053, 1054 [4th Dept 2018], lv denied 31 NY3d 1088[2018]; see also People v Funk, 166AD3d 1487, 1487-1488 [4th Dept 2018], lv denied 32 NY3d 1172 [2019]; People v Pettine, 50 AD3d 1517,1517-1518 [4th Dept 2008]). Present—Centra, J.P., Peradotto, NeMoyer, Curran andWinslow, JJ.