People v Smith

2021 NY Slip Op 02564 [193 AD3d 1260]

April 29, 2021

Appellate Division, Third Department

As corrected through Wednesday, June 2, 2021

[*1]

The People of the State of New York,Respondent, v Karim Smith, Appellant.

Angela M. Kelley, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.

Pritzker, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedSeptember 12, 2017 in Schenectady County, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree (two counts), assault in the second degree,reckless endangerment in the second degree and criminal possession of a weapon in the thirddegree.

Defendant was charged by indictment with criminal possession of a weapon in the seconddegree (two counts), attempted murder in the second degree, assault in the first degree (twocounts) and reckless endangerment in the first degree stemming from a shooting that occurred inthe afternoon of August 14, 2016 on Crane Street in the City of Schenectady, SchenectadyCounty. Thereafter, defendant was charged by a separate indictment with criminal possession ofa weapon in the third degree, stemming from the same incident. The two indictments wereconsolidated. Following a jury trial, defendant was convicted of two counts of criminalpossession of a weapon in the second degree, one count each of assault in the seconddegree—as a lesser included offense of the second count of assault in the firstdegree—reckless endangerment in the second degree—as a lesser included offenseof reckless endangerment in the first degree—and criminal possession of a weapon in thethird degree. Supreme Court sentenced defendant, as a second felony offender, to concurrentprison terms of 12 years, to be followed by five years of postrelease supervision on eachconviction of criminal possession of a weapon in the second degree and to lesser concurrentterms of incarceration on the remaining convictions. Defendant appeals.

Defendant contends that the evidence presented was legally insufficient and the verdict wasagainst the weight of the evidence with respect to his conviction of assault in the second degreebecause the People failed to prove that the victim suffered a serious physical injury. Initially,defendant's legal sufficiency claim is unpreserved for review given that he failed to renew hismotion to dismiss at the close of all proof (see People v Rahaman, 189 AD3d 1709, 1710 [2020], lvdenied 36 NY3d 1059 [2021]; People v Hilton, 166 AD3d 1316, 1317 [2018], lv denied 32NY3d 1205 [2019]). "Nevertheless, as part of our weight of the evidence review, we mustnecessarily determine whether the elements of the charged crimes were proven at trial beyond areasonable doubt" (People vSaunders, 176 AD3d 1384, 1385 [2019] [citations omitted], lv denied 35 NY3d973 [2020]; see People v Meadows,183 AD3d 1016, 1017 [2020], lv denied 35 NY3d 1047 [2020]). "Where, as here, adifferent outcome would not have been unreasonable, we weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Marshall,162 AD3d 1110, 1111 [2018] [internal quotation marks and citations omitted], lvdenied 31 NY3d 1150 [2018]). " 'Serious [*2]physical injury' means physical injury which creates a substantialrisk of death, or which causes death or serious and protracted disfigurement, protractedimpairment of health or protracted loss or impairment of the function of any bodily organ" (PenalLaw § 10.00 [10]; seePeople v Marshall, 162 AD3d 1110, 1113 [2018], lv denied 31 NY3d 1150[2018]).

At trial, the victim testified that he was with two friends at Chubby's, a convenience store onCrane Street, on the day of the incident. According to the victim, a fight broke out betweendefendant and James Watkins, one of the victim's friends, and that the victim had "jumped in" toassist Watkins; thereafter, "everybody started running" and, as the victim was running away, hewas shot in the back of his right leg.^[FN1] The victim asserted that the bullet enteredthrough the back of the leg just below the kneecap and exited through the front of the leg justabove the kneecap. The victim stated that after he was shot, he went to a friend's house for about20 minutes before he was picked up and driven to the home of Watkin's girlfriend. The victimdescribed the injury as a "burning sensation" and ranked his pain level at 5 to 6 out of 10. Hetestified that Watkins gave him some pain pills that helped the pain. The victim also describedthe blood as "trickling" from the wound. Because of the pain pills, the victim could not estimatethe amount of time that he spent at Watkins' girlfriend's house; at some point, he called hisgirlfriend and she took him back to her house until the police arrived. The victim also stated thatthe police took him to the hospital, where he was treated for two days before being discharged oncrutches. The victim testified that he was on crutches for several months and then used a cane forseveral months more. The victim stated that he occasionally still has pain in his leg, for which hetakes medication, and he has two circular scars from the bullet that are "[a]bout the size of apenny." As to whether he sustained any lasting nerve damage, the victim testified that his doctorshad indicated that "it would take six months to a year for [his] leg to get fully healed." The victimdid not participate in any physical therapy for his injury.

We agree with defendant that the verdict as to his conviction for assault in the second degreewas against the weight of the evidence because "the evidence does not support a finding that thevictim sustained a serious physical injury" (People v Marshall, 162 AD3d at 1113;see Penal Law § 120.05 [4]; People v Tucker, 91 AD3d 1030, 1031-1032 [2012], lvdenied 19 NY3d 1002 [2012]). "Although the victim's injuries are by no means trivial, theyfall short of constituting injuries that create a substantial risk of death. There was no evidencethat the victim lost consciousness after being shot or that a vital organ was damaged. Nor wasthere any proof, lay or medical, indicating that the victim's injuries caused a substantial risk [*3]of death or were life threatening" (People v Marshall, 162AD3d at 1113 [citations omitted]; seePeople v Alvarez, 38 AD3d 930, 934 [2007], lv denied 8 NY3d 981 [2007]).Similarly, the evidence failed to show "that the victim suffered from a protracted impairment ofhealth or protracted loss or impairment of the function of a bodily organ" (People vMarshall, 162 AD3d at 1113; seePeople v Stewart, 18 NY3d 831, 832 [2011]). Although there was testimony regardingthe long-term effects of the gunshot wound, no corresponding medical documentation wassubmitted as proof of the link between the impairment and the initial injury (see People vStewart, 18 NY3d at 832; People v Tucker, 91 AD3d at 1032; compare People v Rice, 90 AD3d1237, 1238 [2011]).^[FN2] Further, although the victim testified that hehad two circular scars from the bullet, this testimony alone is not sufficient to support a findingof serious disfigurement (see People v Marshall, 162 AD3d at 1114; People v McKinnon, 15 NY3d311, 316 [2010]). To prove that the victim's scars were a serious disfigurement would haverequired the People to make a record of it, via either a photograph or a detailed description; here,however, the testimony establishes "no more than that the victim had two scars" (People vMcKinnon, 15 NY3d at 316).

Although the evidence "falls short of satisfying the statutory definition of 'serious physicalinjury' " (People v Phillip, 279 AD2d 802, 803 [2001], lv denied 96NY2d 905 [2001]; see People vHam, 67 AD3d 1038, 1040 [2009]), there is no dispute that the victim sustained a"[p]hysical injury" (Penal Law § 10.00 [9]). Therefore, we reduce defendant'sconviction of assault in the second degree under count 6 of the indictment to the lesser includedoffense of assault in the third degree, vacate the sentence imposed on said conviction and remitthe matter to Supreme Court for resentencing thereon (see Penal Law§ 120.00 [2]; People vTrombley, 97 AD3d 903, 903-904 [2012]; cf. People v Harris, 186 AD3d 907, 912 [2020]).

Defendant next asserts that County Court (Eidens, J.H.O.) erred in denying his motion tosuppress his statements made to police because the detective who questioned him engaged inimproper interrogation prior to administering Miranda warnings. At a Huntleyhearing, the People have "the burden of proving beyond a reasonable doubt that [the] defendant'sstatement[s] to police [were] voluntarily given" and that "any custodial interrogation waspreceded by the administration and [the] defendant's knowing waiver of his [or her]Miranda rights" (People vSteigler, 152 AD3d 1083, 1083 [2017] [internal quotation marks and citations omitted],lv denied 30 NY3d 983 [2017]; see People v Newell, 148 AD3d 1216, 1218 [2017], lvdenied 29 NY3d 1035 [2017]). To determine whether a defendant's statements werevoluntary, the totality of the circumstances under which they were obtained should be examined(see People v Weaver, 167 AD3d1238, 1241 [2018], lv denied [*4]33 NY3d 955[2019]; People v Muller, 155 AD3d1091, 1093 [2017], lv denied 30 NY3d 1118 [2018]). If the People meet theirburden, then the defendant bears the burden of persuasion (see People v Steigler, 152AD3d at 1083-1084; People v Newell, 148 AD3d at 1218).

At the Huntley hearing, the detective testified that, throughout the interview,defendant was "calm" and denied being under the influence of drugs or alcohol. The detectiveanswered in the negative upon being asked if defendant ever requested that the questioning stopor for an attorney, but stated that defendant did request medical assistance for a gash on his chin.The detective testified that she promised him medical attention after their interview, that the gashwas small and bleeding "a little bit" and that defendant did not state that he was in pain or that hewas unable to focus due to the injury. With respect to defendant's Miranda rights, thedetective testified that she read verbatim from the "Advice of Rights" preprinted form and thatdefendant was asked to communicate his understanding by initialing after each point. Thedetective further stated that defendant did, in fact, initial after each point, wrote "yes" in responseto whether he understood the form and signed the form. The detective estimated that sheinterviewed defendant for approximately two hours. The detective recalled that, during theinterview, defendant made a comment that he was "sitting here with no attorney present"; thedetective testified that she then asked, "are you telling me that you want an attorney?" and that he"never said no" and "paused a little bit and then just continued talking." The detective stated thatdefendant requested to call a family member and that she provided him with his phone to doso.

Under these circumstances, County Court did not err in finding that the detective's testimonywas credible and, relying on that testimony and video evidence of the interview, in concludingthat defendant knowingly waived his Miranda rights and voluntarily spoke to thedetective (see People v Butcher, 192AD3d 1196, 1197-1198 [2021]; People v McMillan, 185 AD3d 1208, 1212 [2020], lvdenied 35 NY3d 1114 [2020]). Defendant's statement during the interview that he was therewithout an attorney does not change this conclusion as this statement was not sufficient toconstitute an unequivocal request for counsel (see People v Higgins, 124 AD3d 929, 931 [2015]; People v Engelhardt, 94 AD3d1238, 1241 [2012], lv denied 19 NY3d 960 [2012]). Thus, County Court did not errin denying defendant's motion to suppress the video recording.

We are similarly unpersuaded by defendant's argument that Supreme Court committedreversible error by granting the People's challenge for cause to prospective juror No. 103. Duringvoir dire, when the prosecutor asked prospective juror No. 103 whether she would be able torender a verdict of guilty, she responded that she did not think she [*5]could "do something like that." Upon further inquiry, prospectivejuror No. 103 stated that she would be able to find defendant guilty should the People prove theircase with evidence. However, during further questioning, she vacillated continuously betweenthese two positions. Significantly, when asked if she could promise that sympathy would not playa role in her deliberations, prospective juror No. 103 responded, "No, I couldn't promise that."Thereafter, having exhausted all of their peremptory challenges, the People lodged a challengefor cause to prospective juror No. 103 based upon the fact that "[s]he could not promise that hersympathy and concerns about the sentence would not factor into her deliberations." Defendantopposed the challenge, asserting that "she appropriately gauged the seriousness of this matter."Supreme Court granted the People's challenge for cause because prospective juror No. 103 "didnot convince [the court] that she unequivocally would not allow sympathy to play a role in herdeliberations" and that this meant she could not "follow the law." Indeed, "if there is any doubtabout a prospective juror's impartiality, the trial court should err on the side of excusing the juror,since at worst the court will have replaced one impartial juror with another" (People v West, 166 AD3d 1080,1082 [2018] [internal quotation marks, brackets and citations omitted]; see People vJohnson, 94 NY2d 600, 616 [2000]). Given that the juror "did not provide an unequivocalassurance of impartiality, [Supreme] Court properly granted the People's motion to strike her forcause pursuant to CPL 270.20 (1) (b)" (People v Cummings, 157 AD3d 982, 986 [2018] [internal quotationmarks and citation omitted], lv denied 31 NY3d 982 [2018]; see People v Briskin, 125 AD3d1113, 1118 [2015], lv denied 25 NY3d 1069 [2015]; compare People v Johnson, 150 AD3d1390, 1392 [2017], lv denied 29 NY3d 1128 [2017]).

Defendant next asserts that he was denied a fair trial based upon a myriad of acts ofprosecutorial misconduct. Although this assertion was not preserved by timely, specificobjections at trial,^[FN3]wewill nevertheless examine this claim as defendant relies on his counsel's failure to object to thealleged misconduct as one of the bases for his ineffective assistance claim (see People v Horton, 181 AD3d986, 996 [2020], lv denied 35 NY3d 1045 [2020]). First, defendant claims that theprosecutor committed misconduct during voir dire. However, the statements that defendantchallenges were phrased generally and asked for the purpose of ensuring that certain factorswould not influence the jurors (see generally id.). As to claimed misconduct during theopening and closing statements, after close examination, we find that the challenged statements"were fair comment on the evidence and the reasonable inferences to be drawn therefrom" (People v Williams, 163 AD3d1160, 1165 [2018] [internal quotation marks and citation omitted], lv denied 32NY3d[*6] 1179 [2019]). Defendant's contention that theprosecutor impermissibly shifted the burden during her opening statement and summation isbelied by the record as "said comments did not serve to shift the burden of proof" (People v Shamsuddin, 167 AD3d1334, 1336 [2018], lv denied 33 NY3d 953 [2019]). In contrast, in her opening, "theprosecutor was entitled to state the facts [she] expected to prove and the evidence [she] plannedto introduce" (People v Colburn,123 AD3d 1292, 1296 [2014] [internal quotation marks, brackets and citations omitted]).Likewise, "most of the challenged statements [in her summation] were responsive to defensecounsel's . . . remarks in summation" (People v Williams, 163 AD3d at1165; see People v Shamsuddin, 167 AD3d at 1336). Keeping in mind "the fleetingnature of the comments" (People vStory, 81 AD3d 1168, 1169 [2011]), "nothing in the [opening statement or] summation. . . was so prejudicial as to deny defendant's right to a fair trial" (People vWilliams, 163 AD3d at 1165). Given that "the record as a whole 'fails to disclose that theprosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so as todeprive defendant of a fair trial' " (People v Burns, 188 AD3d 1438, 1442 [2020], lv denied 36NY3d 1056 [2021], quoting People v Shamsuddin, 167 AD3d at 1336), trial counsel'sfailure to object does not amount to ineffective assistance of counsel (see People vHorton, 181 AD3d at 997; People vWilliams, 35 NY3d 24, 45 [2020]; People v Rose, 185 AD3d 1228, 1232 [2020], lv denied 35NY3d 1115 [2020]).

Defendant's contention that Supreme Court erred by improperly shifting the burden of proofduring jury selection and preliminary instructions and by improperly instructing the jury as toseveral aspects of the final jury charge is also unpreserved "as no objection was raised at trial"(People v Rivenburgh, 1 AD3d696, 700 [2003], lv denied 1 NY3d 579 [2003]).^[FN4]Were this argument properly before us, wewould find it to be lacking in merit (see People v Beaudoin, 198 AD2d 610, 611 [1993],lv denied 82 NY2d 922 [1994]). Additionally, after the jury returned an inconsistentverdict, the court "properly directed the jury to continue to deliberate after . . .explain[ing] why it could not accept the jury's verdict" (People v Williams, 64 AD3d 734, 735-736 [2009], affd 16NY3d 480 [2011]; see CPL 310.50 [2]).

Defendant also asserts that he did not receive meaningful representation at trial, alleging, in aconclusory fashion, a multitude of errors. "In order to sustain a claim of ineffective assistance ofcounsel, a court must consider whether defense counsel's actions at trial constituted egregiousand prejudicial error such that the defendant did not receive a fair trial. A claim will fail so longas the evidence, the law, and the circumstances of a particular case, viewed in totality and as ofthe time of the representation, reveal that the attorney provided meaningful representation" ([*7]People vStover, 178 AD3d 1138, 1147 [2019] [internal quotation marks, brackets and citationsomitted], lv denied 34 NY3d 1163 [2020]; see People v Porter, 184 AD3d 1014, 1018 [2020], lvdenied 35 NY3d 1069 [2020]).

With respect to defendant's contention that defense counsel failed to effectively conduct voirdire and purportedly failed to excuse a juror, "[j]ury selection involves [a] quintessentiallytactical decision" (People v Horton, 181 AD3d at 997 [internal quotation marks, bracketsand citations omitted]), and, as such, "defendant failed to show the absence of a strategicexplanation for defense counsel's failure to challenge that prospective juror" (People v Brown, 169 AD3d 1488,1490-1491 [2019] [internal quotation marks, brackets and citations omitted], lv denied 35NY3d 1064 [2020]; see People vThompson, 21 NY3d 555, 560 [2013]). As to defendant's contentions that counsel failedto effectively cross-examine several witnesses, "[s]peculation that a more vigorouscross-examination might have [elicited certain testimony or] undermined the credibility of awitness does not establish ineffectiveness of counsel" (People v Bassett, 55 AD3d 1434, 1438 [2008] [internal quotationmarks, brackets and citation omitted], lv denied 11 NY3d 922 [2009]; see People vAdams, 247 AD2d 819, 819 [1998], lv denied 91 NY2d 1004 [1998]). Moreover,defendant failed to demonstrate "the absence of strategic or other legitimate explanations forcounsel's [purported] failure[s]" (People v Horton, 181 AD3d at 997 [internal quotationmarks and citations omitted]; see Peoplev Moore, 185 AD3d 1544, 1545 [2020], lv denied 35 NY3d 1096 [2020]).

With respect to counsel's failure to object to improper testimony by witnesses, these"purported shortcomings involve matters of trial strategy and cannot be characterized asineffective assistance of counsel" (People v Moore, 185 AD3d at 1545 [internal quotationmarks, brackets and citation omitted]). As to defendant's contention that counsel failed to renewhis motion to dismiss at the close of proof, thereby failing to preserve the argument of legalinsufficiency, "the constitutional right to the effective assistance of counsel does not mean thatthe representation was error free in every respect, but simply that [the] defendant was afforded afair trial" (People v Bjork, 105AD3d 1258, 1263 [2013] [internal quotation marks, brackets and citations omitted], lvdenied 21 NY3d 1040 [2013]). "Although defendant faults trial counsel for failing to renewthe motion to dismiss at the close of the proof . . . th[is] asserted error[]—viewed in the context of counsel's overall representation—do[es] not rise to thelevel of ineffective assistance of counsel" (People v Bahr, 96 AD3d 1165, 1166-1167 [2012], lv denied19 NY3d 1024 [2012]; see People v Bjork, 105 AD3d at 1263). Based on the foregoing,given that "counsel filed an omnibus motion, familiarized himself with the relevant evidence,effectively cross-examined the People's [*8]witnesses at theHuntley hearing and at trial, advanced a cogent trial strategy, made relevant objectionsand made coherent opening and closing statements," defendant received meaningfulrepresentation (People v Durfey,170 AD3d 1331, 1337 [2019], lv denied 34 NY3d 980 [2019]).

Finally, defendant failed to preserve his claim that the sentence imposed constituted a penaltyfor exercising his constitutional right to a jury trial (see People v Sostre, 172 AD3d 1623, 1627 [2019], lvdenied 34 NY3d 938 [2019]; People v Williams, 163 AD3d at 1165). We also rejectdefendant's argument that his sentence—which was less than the maximum permissibleterm—was unduly harsh and excessive.^[FN5] "A sentence that falls within the permissiblestatutory range will not be disturbed unless it can be shown that the sentencing court abused itsdiscretion or extraordinary circumstances exist warranting a modification" (People vSostre, 172 AD3d at 1628 [internal quotation marks and citations omitted]; see People v Gilmore, 177 AD3d1029, 1029 [2019], lv denied 35 NY3d 970 [2020]). Because we find neitherextraordinary circumstances nor an abuse of discretion, we decline defendant's invitation toreduce his sentence in the interest of justice (see People v Bombard, 187 AD3d 1417, 1420 [2020]; People vSostre, 172 AD3d at 1628). Defendant's remaining argument that his constitutional rights toconfront witnesses and due process were violated when a witness gave testimony without aninterpreter present is unpreserved because "defendant did not object to the lack of an interpreterat trial" (People v Avery, 80 AD3d982, 984 [2011], lv denied 17 NY3d 791 [2011]).

Garry, P.J., Lynch, Clark and Colangelo, JJ., concur. Ordered that the judgment is modified,on the facts, by reducing defendant's conviction for assault in the second degree under count 6 ofthe indictment to assault in the third degree; vacate the sentence imposed thereon and matterremitted to the Supreme Court for resentencing on said count; and, as so modified, affirmed.

Footnote 1:A detective testified that heviewed security footage from Chubby's that captured the incident and he recognized defendant,who was holding a gun, from a prior encounter.

Footnote 2:Although the People providedthe intake and discharge paperwork from the victim's initial visit to the hospital, the recordscontain no information regarding long-term effects of the injury, the severity of the injury or theamount of time anticipated for recovery.

Footnote 3:Although preserved, we areunpersuaded by defendant's contention that the People's request to exclude defendant's significantother from the courtroom during the trial constituted misconduct. The significant other wasadded to the People's witness list, albeit belatedly, was put under subpoena and there is support inthe record for Supreme Court's determination that she was a material witness. Despite the factthat she was not ultimately called as a witness, the record does not support that this wasmalicious on the People's part.

Footnote 4:Defendant notes that anobjection was made as to the verdict sheet, however, the basis of this objection was not that itimproperly shifted the burden of proof.

Footnote 5:As noted above, defendant'sconviction for assault in the second degree is being reduced, the sentence imposed thereonvacated and the matter remitted for resentencing on the reduced conviction.