| People v Swift |
| 2021 NY Slip Op 03785 [195 AD3d 1496] |
| June 11, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Albert W. Swift, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Carolyn Walther of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.), renderedFebruary 26, 2015. The judgment convicted defendant upon a jury verdict of burglary in the firstdegree (two counts), aggravated criminal contempt, criminal contempt in the first degree andstrangulation in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawand as a matter of discretion in the interest of justice by reversing that part convicting defendantof strangulation in the second degree and granting a new trial on count five of the indictment andby reducing the sentences of imprisonment imposed for burglary in the first degree under countsone and two of the indictment to determinate terms of 10 years, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial oftwo counts of burglary in the first degree (Penal Law § 140.30 [2], [3]) and onecount of strangulation in the second degree (§ 121.12), among other offenses.Although defendant failed to preserve for our review his contention that the evidence is notlegally sufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]),we nevertheless exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]) and conclude that the evidence is legallysufficient to support the conviction. Viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a validline of reasoning and permissible inferences that could lead a reasonable person to conclude thatdefendant unlawfully entered the apartment he once shared with the complainant (see generally People v Danielson, 9NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). Thecomplainant testified that she had kicked defendant out of the apartment some time before thenight of the incident, and the evidence at trial established that defendant had to physically breaktwo different doors to access the apartment.
Contrary to defendant's further contention, we conclude that the evidence is legally sufficientto establish that the complainant sustained a physical injury (see Penal Law§ 10.00 [9]; People vRuvalcaba, 187 AD3d 1553, 1556 [4th Dept 2020], lv denied 36 NY3d 1053[2021]; People v McKelvey, 180AD3d 494, 494 [1st Dept 2020], lv denied 35 NY3d 994 [2020]; cf. People v Case, 150 AD3d1634, 1635-1636 [4th Dept 2017]; People v White, 100 AD3d 1397, 1399 [4th Dept 2012]). Thecomplainant testified that defendant punched and choked her, causing her to gasp for air and, atsome point during the incident, to urinate on herself. Following the incident, the complainant'sneck "was really sore" and "[i]t really hurt to even move it." Additionally, her "back was sore,[her] side was sore," and her pain level was a seven out of ten, prompting her to go to the hospitalfor treatment. In pictures displayed to the jury, the complainant identified bruises and marks fromdefendant's fingers on her neck.
We further conclude, after viewing the evidence in light of the elements of the crimes as[*2]charged to the jury (see Danielson, 9 NY3d at 349),that the verdict is not against the weight of the evidence (see Bleakley, 69 NY2d at495).
With respect to the issue of physical injury, defendant further contends that County Courterred in denying his request to charge attempted strangulation in the second degree as a lesserincluded offense of strangulation in the second degree. We agree. To be entitled to a charge on alesser included offense, "a defendant must show both that the greater crime cannot be committedwithout having concomitantly committed the lesser by the same conduct, and that a reasonableview of the evidence supports a finding that he or she committed the lesser, but not the greater,offense" (People v James, 11 NY3d886, 888 [2008]; see People v Glover, 57 NY2d 61, 63 [1982]).
Here, there is no question that the first prong of the test has been met; the disputed issue iswhether there is a reasonable view of the evidence supporting a determination of guilt on thelesser count but not the higher count. Strangulation in the second degree requires proof that thevictim suffered stupor, loss of consciousness, or physical injury or impairment (Penal Law§ 121.12). Inasmuch as there was no evidence that the complainant suffered stuporor loss of consciousness, defendant's guilt of this offense rested entirely on the evidence that thecomplainant sustained a physical injury. Viewing the evidence in the light most favorable todefendant (see People v Rivera, 23NY3d 112, 120-121 [2014]), we conclude that a reasonable view of the evidence would havesupported a determination that the complainant did not sustain a physical injury and thus thatdefendant was guilty of only the lesser offense and not the greater (cf. People v Moreno, 187 AD3d449, 450 [1st Dept 2020], lv denied 36 NY3d 974 [2020]; People v Pietoso, 168 AD3d 1276,1280 [3d Dept 2019], lv denied 33 NY3d 1034 [2019]). We therefore modify thejudgment by reversing that part convicting defendant of strangulation in the second degree, andwe grant defendant a new trial on count five of the indictment.
Contrary to defendant's further contention, the court did not err in permitting the People tointroduce Molineux evidence related to two prior incidents of domestic violence betweendefendant and the complainant. That evidence provided background information related to theparties' relationship and put defendant's charged conduct in context (see People v Leonard, 29 NY3d 1,7 [2017]; People v Frankline, 27NY3d 1113, 1115 [2016]; People vColbert, 60 AD3d 1209, 1212 [3d Dept 2009]). In addition, the first incident wasrelevant to establish the existence and defendant's knowledge of the order of protection that heallegedly violated (see People vAnderson, 120 AD3d 1548, 1548-1549 [4th Dept 2014], lv denied 24 NY3d1042 [2014]; People v Thomas, 26AD3d 241, 241 [1st Dept 2006], lv denied 6 NY3d 898 [2006]).
Defendant raises several issues in contending that he was denied effective assistance ofcounsel, but we conclude that his contention lacks merit. Although defendant did not receiveerror-free representation, "[t]he test is 'reasonable competence, not perfectrepresentation' " (People vOathout, 21 NY3d 127, 128 [2013]). Viewing the evidence, the law, and thecircumstances of this case as a whole and as of the time of the representation, we conclude thatdefendant was afforded meaningful representation (see People v Baldi, 54 NY2d 137,147 [1981]).
Finally, we agree with defendant that the sentence is unduly harsh and severe under thecircumstances of this case. Defendant has no prior criminal record, has been hospitalizednumerous times for severe mental illness, and was offered an aggregate sentence of five years bythe People in their pretrial plea offer. Thus, as a matter of discretion in the interest of justice, wefurther modify the judgment by reducing the sentences of imprisonment imposed for burglary inthe first degree under counts one and two of the indictment to determinate terms of 10 years, tobe followed by the five years of postrelease supervision imposed by the court (see CPL470.15 [6] [b]). Present—Centra, J.P., Lindley, NeMoyer, Troutman and Bannister,JJ.