| People v Infinger |
| 2021 NY Slip Op 03079 [194 AD3d 1183] |
| May 13, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Dishawn Infinger, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (Favreau, J.),rendered February 8, 2018, upon a verdict convicting defendant of the crimes of assault in thesecond degree, criminal possession of a weapon in the third degree and promoting prisoncontraband in the first degree.
In June 2016, defendant—an inmate at Clinton Correctional Facility—allegedlystruck a correction officer who was attempting to perform a strip frisk after finding a scalpel-typeweapon in defendant's cell. In connection therewith, defendant was charged by indictment withassault on a peace officer (count 1), assault in the second degree (count 2), criminal possession ofa weapon in the third degree (count 3) and promoting prison contraband in the first degree (count4). A jury trial ensued, during which defendant raised a justification defense. Defendant wasacquitted of count 1, but otherwise convicted of the remaining charges. He was sentenced, as asecond felony offender, to a prison term of six years, with five years of postrelease supervision,upon the conviction of assault in the second degree, and to prison terms of 3 to 6 years for eachof the remaining convictions, to run concurrently with one another but consecutively to thesentence that defendant was presently serving. Defendant appeals.
We affirm. Defendant challenges the verdict on assault in the second degree as against theweight of the evidence, asserting that the People failed to disprove his justification defense anddid not establish the physical injury component of that crime. As relevant here, a person is guiltyof assault in the second degree when, "[w]ith intent to prevent a peace officer . . .from performing a lawful duty . . . he or she causes physical injury to such peaceofficer" (Penal Law § 120.05 [3]). Physical injury means "impairment of physicalcondition or substantial pain" (Penal Law § 10.00 [9]). "To qualify as substantialpain within the meaning of the Penal Law, the pain must be 'more than slight or trivial,' but it'need not . . . be severe or intense' " (People v Diaz, 163 AD3d 110, 113 [2018], lv denied 32NY3d 1110 [2018], quoting People vChiddick, 8 NY3d 445, 447 [2007]). Factors relevant to the inquiry include "anobjective assessment of the injury sustained, the victim's subjective [*2]description of the injury and whether the victim sought any medicaltreatment to address [it]" (People v Diaz, 163 AD3d at 113 [internal quotation marks andcitations omitted]).
With respect to the defense of justification for the use of ordinary physical force, "unless thedefendant is the initial aggressor, he or she may 'use physical force upon another person whenand to the extent he or she reasonably believes such to be necessary to defend himself, herself ora third person from what he or she reasonably believes to be the use or imminent use of unlawfulphysical force by such other person' " (People v Williams, 161 AD3d 1296, 1296-1297 [2018], lvdenied 32 NY3d 942 [2018], quoting Penal Law § 35.15 [1]). The People bearthe burden of disproving the justification defense beyond a reasonable doubt (see People v Brown, 33 NY3d316, 321 [2019]; People vBrinkley, 174 AD3d 1159, 1161 [2019], lv denied 34 NY3d 979 [2019]; People v Every, 146 AD3d 1157,1161 [2017], affd 29 NY3d 1103 [2017]).
At trial, correction officer Chad Stickney testified that he located a scalpel-type weaponinside of a roll of toilet paper during an authorized search of defendant's cell. After finding thecontraband, Stickney placed defendant in mechanical restraints and escorted him to a secure areafor a strip search. Stickney removed the restraints from defendant's wrists and ordered him toplace his hands flat against the wall. According to Stickney, as he was reaching behind his backto secure the restraints on his belt, defendant "turned off the wall and punched [him] in the facewith a closed fist." Stickney "returned blows in the same manner with closed fists towards[defendant's] face." Stickney explained that defendant hit him several times and "kick[ed] [him]in the mid-section and in the right knee." Ron Wood, a correction sergeant, generallycorroborated Stickney's testimony about the altercation, explaining that he helped escortdefendant to the secure location and that defendant spun around and struck Stickney in the facewhen he was attempting to perform a strip frisk. Douglas Evens, another correction officer,testified that he saw defendant "throwing fists" and "kicking towards [o]fficer Stickney" when hereported to the scene after hearing a commotion.
Following the incident, Stickney reported to the prison hospital in "minor pain" with"contusions and swelling . . . to the left side of [his] face" as well as "redness. . . and swelling to [his] knee." Stickney remained on duty but described his knee as"sore" and "stiff" after his shift ended. He acknowledged that he had knee surgery in 2002, whichcaused swelling and arthritis on damp or cold days. Stickney continued to work for five daysbefore going on a previously planned vacation. He testified that his knee was "progressivelygetting worse" and that he was unable to return to work as previously scheduled in early July2016. He went to the emergency room—where he did not take the [*3]pain medication that he was given—and had X rays taken,explaining that his knee pain was a "four to five" on the pain scale at that point, intermittent and"like a toothache." Stickney underwent knee replacement surgery in September 2016, enduring a"very painful" recovery. He returned to work on a full-time basis around the end of March 2017.On cross-examination, Stickney acknowledged that he had been a party to a lawsuit involving theexcessive use of force on inmates, but denied the substance of the allegations and noted that hehad been cleared to return to work after an internal investigation by the Attorney General'soffice.
An orthopedic surgeon who treated Stickney on July 28, 2016 explained that he complainedof knee pain and instability that "culminated to the point where it was significantly interferingwith the quality of his life and his ability to perform his job." The surgeon noted that Stickneyhad "multiple [prior] work-related injuries" to his knee, including an unrelated anterior cruciateligament injury as well as meniscus damage culminating in posttraumatic arthritis. The surgeondiagnosed Stickney with an "arthritic knee with decreased range of motion," explaining that hewas aware that Stickney had "an altercation" at work and the event could have caused the painthat Stickney relayed to him. The surgeon ultimately opined that Stickney's knee had been"failing for years," his pain was the culmination of several injuries and the altercation in questionwas the "straw that broke the camel's back."
Defendant testified on his own behalf, maintaining that he feared for his life upon enteringthe frisk room—which does not have cameras and is known among inmates as the"[s]laughter [h]ouse"—because he had provided information about a week prior regardingan alleged assault on another inmate at the facility. According to defendant, prior to conductingthe strip search, Stickney stated, "I normally don't take the chains off my dogs before I beat[th]em, but I'm going to give you a shot." Defendant maintained that he complied when Stickneyordered him to place his hands on the wall after removing his mechanical restraints. Defendanttestified that, when Stickney told him that he could take his hands down, Woods "hit [him] in[his] face," as did Stickney, and a "full-fledged brawl" broke out. According to defendant, aresponse team showed up and started "kicking and stomping [him]" with repeat blows to hisbody and face until he heard someone say "that's enough" and was dragged to the prison'shospital. A nurse at the facility testified that defendant presented to the hospital with scrapes, abloody nose and swelling on his forehead; however, his injuries were not considered to beserious and were treated with minor first aid.
On this record, a different verdict would not have been unreasonable in light of theconflicting testimony as to whether defendant was the initial aggressor. Nevertheless, whenviewing the [*4]evidence in a neutral light and deferring to thejury's credibility determinations, we conclude that the verdict on his assault in the second degreeconviction is not against the weight of the evidence. Even assuming that Stickney's arthritis waspartially attributable to his prior knee injuries, the People sufficiently established the requisiteelement of causation to support the conviction (see People v Hunt, 13 AD3d 160, 160-161 [2004], lvdenied 4 NY3d 831 [2005]; see generally Matter of Anthony M., 63 NY2d 270, 280[1984]). Moreover, although Stickney testified that he was only in "minor pain" immediatelyfollowing the incident, the evidence that Stickney was unable to return to work after his vacationdue to knee pain, sought medical treatment several weeks later, underwent knee replacementsurgery and was out of work for several months amply supports the jury's finding that he suffereda physical injury within the meaning of Penal Law § 10.00 (9) (see People v Hodge, 83 AD3d 594,595 [2011], lv denied 17 NY3d 859 [2011]). The jury's rejection of defendant'sjustification defense was also not against the weight of the evidence (see Penal Law§ 35.15 [1] [b]; People vHarris, 186 AD3d 907, 910 [2020]; People v Harden, 134 AD3d 1160, 1164 [2015], lv denied27 NY3d 1133 [2016]). Two correction officers independently testified that defendant was theinitial aggressor, and the jury could reasonably discredit defendant's version of the events,particularly since his description of the officers' conduct conflicted with the minor nature of hisinjuries (see People v Chappell, 187AD3d 1319, 1324 [2020]; People v Every, 146 AD3d at 1161). We defer to the jury'scredibility assessments in these circumstances (see People v Harris, 186 AD3d at 910;People v Every, 146 AD3d at 1162).
Defendant further contends that County Court abused its discretion regarding the manner inwhich it responded to a jury note seeking clarification on the charge of assault in the seconddegree. Although defendant recognizes that his argument is unpreserved, he asks this Court totake corrective action in the interest of justice. Alternatively, he asserts that counsel's failure toobject deprived him of meaningful representation. We are unpersuaded as to both arguments.Following the charge conference, County Court gave the jury the justification charge as it relatedto counts 1 and 2 of the indictment, explaining that the jury "must find . . .defendant not guilty of the first two counts" if it found that the People "failed to prove beyond areasonable doubt that defendant was not justified" in using physical force. During deliberations,the jury submitted a note stating that it was unable to reach a unanimous decision regardingassault in the second degree and requesting that the court "provide clarification" on that count "asdescribed by the law." County Court consulted with both parties as to how to proceed and theyagreed that the court should reread the charge [*5]of assault in thesecond degree. Although defense counsel did not make a specific request that the jury bereinstructed on the justification defense, he asked the court to read the instructions provided onthe verdict sheet, which included a statement that the jury could not consider count 2 if itacquitted defendant of count 1 on the ground that the People did not disprove his justificationdefense beyond a reasonable doubt. The court reread the charge on assault in the second degree,reminded the jury to submit another note if it needed further clarification, and specifically"refer[red] [the jury] to the verdict sheet again if [it] need[ed] clarification in terms of taking up. . . count [2] of the indictment." In these circumstances, County Court did not abuseits discretion in the manner in which it responded to the jury note, and no cause exists to takecorrective action in the interest of justice (see generally People v Almodovar, 62 NY2d126, 131 [1984]). Nor has defendant established that he was deprived of meaningfulrepresentation with respect to counsel's advocacy on this issue (see People v Snow, 170 AD3d1276, 1278 [2019], lv denied 33 NY3d 1035 [2019]; People v Bekka, 159 AD3d 578,578 [2018], lv denied 31 NY3d 1078 [2018]).
We further reject defendant's argument that the sentence imposed is harsh and excessive.Notwithstanding certain mitigating factors, defendant has a prior criminal history for seriouscrimes spanning multiple jurisdictions. In light of this prior criminal history, coupled withstatements that he made to a probation officer during the presentence investigation interview, wediscern no abuse of discretion or extraordinary circumstances that would warrant a reduction ofthe sentence in the interest of justice (see People v Crippen, 156 AD3d 946, 953 [2017]; People v Humphrey, 13 AD3d815, 816 [2004], lv denied 4 NY3d 799 [2005]). We do, however, find it appropriateto correct two errors in the presentence investigation report, which erroneously described assaultin the second degree as a class A felony and stated that defendant had three (rather than two)prior felony convictions. Defense counsel highlighted these errors during the sentencingproceeding and "[f]ailing to redact erroneous information from the [presentence investigationreport] create[s] an unjustifiable risk of future adverse effects to defendant in other contexts" (People v Freeman, 67 AD3d 1202,1203 [2009]; compare People vTaylor, 118 AD3d 1044, 1048 [2014], lv denied 23 NY3d 1043 [2014]).
Egan Jr., J.P., Clark, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed, and the County Court of Clinton County is directed to correct the presentenceinvestigation report in the manner described herein.