| People v Rahaman |
| 2020 NY Slip Op 07252 [189 AD3d 1709] |
| December 3, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Cendno Rahaman, Appellant. |
Steven M. Sharp, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered August 2, 2019, upon a verdict convicting defendant of the crimes of attempted assaultin the first degree (three counts), assault in the second degree, attempted murder in the seconddegree and tampering with physical evidence.
While the victim was out late with his girlfriend and his friend one night in August 2018,they encountered defendant and became involved in a verbal altercation. The verbal altercationsubsequently escalated to a physical one. Defendant swung a knife at the girlfriend and thefriend, but he missed striking them. Defendant, however, stabbed the victim in the head andwrist. Defendant was thereafter charged with multiple crimes in connection with this incident.Following a jury trial, defendant was convicted of three counts of attempted assault in the firstdegree (counts 1, 2 and 4), assault in the second degree (count 6), attempted murder in the seconddegree (count 5) and tampering with physical evidence (count 7). County Court sentenceddefendant to a term of imprisonment followed by a period of postrelease supervision. Defendantappeals.
Defendant argues that the verdict convicting him of attempted murder in the second degree,the three counts of attempted assault in the first degree and tampering with physical evidence wasnot based upon legally sufficient evidence or, in the alternative, was against the weight of theevidence. To the extent that defendant directs his legal sufficiency argument at the three countsof attempted assault in the first degree, he failed to preserve it because he only made a generalmotion to dismiss with respect to these specific counts (see People v Splunge, 159 AD3d 1136, 1136 [2018]; People v Stacconi, 151 AD3d1395, 1396 [2017]). Although defendant did make a specific motion as to the counts ofattempted murder in the second degree and tampering with physical evidence, he failed to renewhis motion at the close of all proof. Accordingly, defendant's legal sufficiency argument is alsounpreserved as to these counts (seePeople v Sloley, 179 AD3d 1308, 1309 n 2 [2020], lv denied 35 NY3d 974[2020]; People v Hilton, 166 AD3d1316, 1317 [2018], lv denied 32 NY3d 1205 [2019]), and we decline defendant'srequest to exercise our interest of justice jurisdiction (see People v Lucas, 25 AD3d 822, 823 [2006], lv denied 6NY3d 815 [2006]).
Regarding defendant's weight of the evidence claim, where, as here, a contrary result wouldnot have been unreasonable, we "weigh the relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony to determineif the verdict is supported by the weight of the evidence" (People v Wilson, 164 AD3d 1012, 1014 [2018]; see People v Mamadou, 172 AD3d1524, 1524 [2019], lv denied 33 NY3d 1106 [2019]; People v Arhin, 165 AD3d 1487,1488 [2018]). When undertaking a weight of the evidence analysis, we view the evidence in aneutral light and defer to the jury's assessment of the credibility of the witnesses (see People v Benjamin, 183 AD3d1125, 1128 [2020]; People vGill, 168 AD3d 1140, 1140-1141 [2019]). That said, defendant premises his weight ofthe evidence claim on the basis that the proof failed to show that he possessed the requisite intentto commit the challenged crimes. "Criminal intent may be inferred from the totality of thecircumstances or from the natural and probable consequences of the defendant's conduct" (People v Conway, 179 AD3d1218, 1219 [2020] [internal quotation marks, ellipsis, brackets and citations omitted], lvdenied 35 NY3d 941 [2020]; seePeople v Pine, 126 AD3d 1112, 1114 [2015], lv denied 27 NY3d 1004[2016]).
As to the conviction for attempted murder in the second degree, the trial evidence establishesthat, after the victim tripped and fell while trying to run away from defendant, defendant got ontop of him with a knife. According to the victim, defendant began "stabbing and swing[ing] at[his] head" with the knife. This attack did not stop even after the victim's friend hit defendant onthe head with a bottle. The victim stated that he was "fighting for [his] life" but was eventuallyable to escape. The victim was "bleeding a lot" and he was treated at the hospital for his injuries.A surgeon testified that the victim had "active bleeding" from one of the head lacerations thatrequired the blood vessel to be tied off. The surgeon further explained that if the blood vesselwas not tied off, it would continue to bleed to the point where the victim could go into shock.Although defendant contends that the victim's injuries were minor, "[t]he absence of a long-termserious injury to a victim does not preclude the finding of life-threatening actions by a defendant"(People v Ryder, 146 AD3d1022, 1024 [2017], lv denied 29 NY3d 1086 [2017]). Viewing the testimonialevidence, as well as the videos and photographs, in a neutral light, the conviction for attemptedmurder in second degree was supported by the weight of the evidence (see Penal Law§§ 110.00, 125.25 [1]; People v Greenfield, 167 AD3d 1060, 1062 [2018], lvdenied 32 NY3d 1204 [2019]; People v Salce, 124 AD3d 923, 925-926 [2015], lv denied25 NY3d 1207 [2015]).
The convictions for the three counts of attempted assault in the first degree likewise were notagainst the weight of the evidence (see Penal Law §§ 110.00, 120.10[1]; People v Gill, 168 AD3d at 1142; People v Andrews, 78 AD3d 1229, 1230-1231 [2010], lvdenied 16 NY3d 827 [2011]). In addition to the foregoing proof with respect to the attack onthe victim, the record discloses that defendant swung the knife at the friend's midsection. Thefriend stated that defendant "took a good swing" at him and that defendant came within threeinches of striking him. The record also discloses that defendant chased the girlfriend and swungthe knife at her while she was cornered in a vestibule area of a bar. The girlfriend stated that theknife came "[v]ery close" to her head. Taking into account that intent may be inferred by themanner in which defendant used the knife (see People v Lewis, 46 AD3d 943, 945 [2007]), defendant'sargument with respect to the convictions for these three counts is without merit.
Regarding the conviction for tampering with physical evidence, the record indicates thatdefendant, as he fled the scene, threw the knife below street level in a dark vestibule and that itwas eventually discovered with the aid of a flashlight. Viewing the evidence in a neutral light andthe conflicting inferences that may be drawn therefrom, we cannot say that the conviction fortampering with physical evidence was against the weight of the evidence (see Penal Law§ 215.40 [2]; People vMaull, 167 AD3d 1465, 1466 [2018], lv denied 33 NY3d 951 [2019]; People v Neulander, 162 AD3d1763, 1764-1765 [2018], affd 34 NY3d 110 [2019]; People v Whitehead, 119 AD3d1080, 1081 [2014], lv denied 24 NY3d 1048 [2014]).
Defendant maintains that he was extremely intoxicated at the time of the incident at issueand, therefore, he lacked the requisite intent to commit the challenged crimes. There wasevidence as to how much alcohol defendant had consumed prior to the altercation, as well asconflicting evidence regarding defendant's level of intoxication at the time of the altercation. Thejury heard this evidence and apparently found that defendant's intoxication did not negate theelement of intent. Because we see no basis to disturb the jury's finding in this regard, defendant'sargument is unpersuasive (see People vOshintayo, 163 AD3d 1353, 1356-1357 [2018], lv denied 32 NY3d 1006 [2018];People v Shuler, 100 AD3d1041, 1043 [2012], lv denied 20 NY3d 988 [2012]).
Defendant also argues that the audio portion from the body camera video of the respondingpolice officers should have been excluded as inadmissible hearsay. We disagree. The statementsmade in the video were not being offered for their truth but to explain what the police officers didand did not do as part of their investigation into the incident at issue (see People v McCottery, 90 AD3d1323, 1325 [2011], lv denied 19 NY3d 975 [2012]; People v Carney, 18 AD3d 242,243 [2005], lv denied 5 NY3d 882 [2005]). In addition, County Court, on multipleoccasions, provided the jury with a limiting instruction (see People v McCottery, 90AD3d at 1325; People v Davis, 23AD3d 833, 835 [2005], lv denied 6 NY3d 811 [2006]). Accordingly, reversal is notwarranted on this basis (see People vGregory, 78 AD3d 1246, 1246-1247 [2010], lv denied 16 NY3d 831 [2011]).Furthermore, even if the court erred in admitting the audio portion from the video, any error washarmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant contends that County Court failed to conduct a further inquiry to determinewhether the jury foreperson was grossly unqualified to serve. "To decide whether a juror isgrossly unqualified, the trial court must conduct a probing and tactful inquiry and exercise itsdiscretion to determine whether the context of the entire colloquy reveals an obviously partialstate of mind and convincingly demonstrates that the sworn juror cannot render an impartialverdict" (People v Crider, 176AD3d 1499, 1500 [2019] [internal quotation marks, brackets and citations omitted], lvdenied 34 NY3d 1157 [2020]; seePeople v Green, 127 AD3d 1473, 1474-1475 [2015], lv denied 27 NY3d 965[2016]). We defer to the trial court's determination regarding whether a juror is grosslyunqualified in view of its superior position to assess the partiality of a juror (see People v Kuzdzal, 31 NY3d478, 483 [2018]; People vMontes, 178 AD3d 1283, 1288 [2019], lv denied 34 NY3d 1161 [2020];People v Leader, 285 AD2d 823, 824 [2001], lv denied 97 NY2d 756[2002]).
After summations, but prior to when County Court charged the jury, juror No. 116 stated, "Iwonder once all of this is over if we will see the sentencing on the news. I don't want to havegone through all of this and not know what happened." Juror No. 116 was subsequentlydischarged. County Court then individually questioned each juror. When the court asked theforeperson whether she had heard a remark by juror No. 116, the foreperson responded, "Not thatI recall." The foreperson further responded that nothing that any of the jurors have said hadcaused her to form an opinion about defendant's guilt and that she has followed, and couldcontinue to follow, the court's instructions about not discussing the case during the trial. After thecourt questioned all of the jurors, defendant requested a mistrial or, alternatively, for a furtherinquiry of the foreperson. The request stemmed from a perceived discrepancy between theforeperson's answer that she did not recall a remark by juror No. 116 and juror No. 7's answerthat the foreperson had made a comment in response to juror No. 116's remark. The court,however, found that the jurors provided truthful responses and took the foreperson's word at facevalue that she did not recall any comment by juror No. 116. Given that the record discloses thatthe court conducted a probing and tactful inquiry (see People v Robinson, 121 AD3d 1179, 1181 [2014]) anddeferring to its credibility determination that the foreperson could remain impartial and did nothear juror No. 116's remark (see People v Green, 127 AD3d at 1475), the court did not errin denying defendant's request for a mistrial.[FN1]
Defendant argues that the imposed sentence was harsh and excessive.[FN2] He was sentenced to concurrentterms of imprisonment, the greatest of which was 25 years, to be followed by five years ofpostrelease supervision, for the convictions of attempted assault in the first degree (count 4),attempted murder in the second degree (count 5), assault in the second degree (count6)—charges that relate to the attack on the victim—and tampering with physicalevidence (count 7). The sentences for these counts were to run consecutively to the sentence ofseven years, to be followed by five years of postrelease supervision, which was imposed for theconviction of attempted assault in the first degree (count 1)—a charge relating to the attackon the friend. Defendant was also sentenced to another consecutive term of imprisonment ofeight years, to be followed by five years of postrelease supervision, for the conviction ofattempted assault in the first degree (count 2), which relates to the attack on the girlfriend. Afterconsideration of all the relevant factors and the circumstances of this case, we deem itappropriate to reduce the 40-year aggregate sentence in the interest of justice by directing that allsentences run concurrently to each other (see CPL 470.15 [6] [b]; People v Anderson, 149 AD3d1407, 1416 [2017], lv denied 30 NY3d 947 [2017]; People v Collazo, 45 AD3d 899,901 [2007], lv denied 9 NY3d 1032 [2008]; People v Smith, 309 AD2d 1081,1083 [2003]; People v Sheppard, 273 AD2d 498, 500 [2000], lv denied 95 NY2d908 [2000]; see generally People v Delgado, 80 NY2d 780, 783 [1992]). Defendant'sremaining contentions have been examined and are without merit.
Egan Jr., J.P., Mulvey and Pritzker, JJ., concur. Ordered that the judgment is modified, as amatter of discretion in the interest of justice, by directing that all sentences imposed upondefendant run concurrently to one another, and, as so modified, affirmed.
Footnote 1:Contrary to the People's claim,the argument is preserved inasmuch as defendant moved for a mistrial upon the completion ofthe individual questioning of all jurors—i.e., after juror No. 7 gave a response about theforeperson and at a time when County Court still could have taken action (see CPL470.05 [2]).
Footnote 2:Defendant's claim that he waspunished for exercising his right to a trial because the imposed sentence greatly exceeded whatwas offered in a plea offer is unpreserved for review (see People v Hurley, 75 NY2d 887,888 [1990]).