| People v DuBois |
| 2021 NY Slip Op 07364 [200 AD3d 1601] |
| December 23, 2021 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Quinnton M. DuBois, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Merideth H. Smith of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kaylan Porter of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (J. Scott Odorisi, J.),rendered November 30, 2016. The judgment convicted defendant after a nonjury trial ofattempted assault in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial ofattempted assault in the second degree (Penal Law §§ 110.00, 120.05 [1]).Defendant contends that the evidence is legally insufficient to establish that he intended to causeserious physical injury to the victim. We note at the outset that, contrary to the conclusion of thedissent, Supreme Court expressly addressed each of the specific arguments raised in defendant'smotion for a trial order of dismissal, including the argument raised on appeal, and we aretherefore not left in a position in which we would have to impermissibly deem the court's failureto rule on the motion as a denial thereof (cf. People v Capitano, 198 AD3d 1324,1324-1325 [4th Dept 2021]). With respect to the merits, we reject defendant's argument."Attempted assault in the second degree can be proven without any serious physical injury oreven any physical injury; all that is required is that the defendant intended such injury andengaged in conduct directed at accomplishing that objective" (People v McCloud, 121AD3d 1286, 1287 [3d Dept 2014], lv denied 25 NY3d 1167 [2015] [internal quotationmarks omitted]; see generally People v Ford, 114 AD3d 1273, 1274 [4th Dept 2014],lv denied 23 NY3d 962 [2014]). Here, defendant's intent may be "inferred from thetotality of [his] conduct," which included "repeatedly striking [the victim] while [she was] on theground defenseless" (People v Meacham, 84 AD3d 1713, 1714 [4th Dept 2011], lvdenied 17 NY3d 808 [2011]). Further, viewing the evidence in light of the elements of thecrime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
All concur except Curran, J., who dissents and votes to hold the case, reserve decision andremit the matter to Supreme Court, Monroe County, for further proceedings in accordance withthe following memorandum.
Curran, J. (dissenting). I respectfully dissent and would hold the case, reserve decision, andremit the matter to Supreme Court for a ruling on defendant's motion for a trial order of dismissalbecause the court never expressly decided defendant's motion adversely to him. Compelling thatconclusion, I note that the Court of Appeals " 'has construed CPL 470.15 (1) as alegislative restriction on the Appellate Division's power to review issues either decided in anappellant's favor, or not ruled upon, by the trial court' " (People v Hallmark, 122AD3d 1438, 1439 [4th Dept 2014], quoting People v LaFontaine, 92 NY2d 470, 474[1998], rearg denied 93 NY2d 849 [1999]; see People v Coles, 105 AD3d 1360,1363 [4th Dept 2013]). Further, I note that this Court has repeatedly held that it lacks the powerto review a sufficiency contention where the court has not expressly ruled on, and denied, adefendant's motion for a trial order of dismissal (see e.g. People v Johnson, 192 AD3d1612, 1615-1616 [4th Dept 2021]; People v Bennett, 180 AD3d 1357, 1358 [4th Dept2020]; People v Moore, 147 AD3d 1548, 1548-1549 [4th Dept 2017]; see generallyPeople v Spratley, 96 AD3d 1420, 1421 [4th Dept 2012]), even in the context of a nonjurytrial (see e.g. People v Capitano, 198 AD3d 1324, 1324-1325 [4th Dept 2021]; Peoplev White, 134 AD3d 1414, 1415 [4th Dept 2015]).
Here, during the nonjury trial, the court expressly reserved decision on defendant's motionfor a trial order of dismissal. Although the Criminal Procedure Law requires a court to determinea motion on which it has reserved decision (see CPL 290.10 [1]; 320.20 [4]), the courthere never again addressed that motion by name on the record. Rather, in rendering its verdict,the court stated merely that, "based upon the credible trial evidence, this [c]ourt finds thedefendant guilty of . . . attempted assault in the second degree [because] there waslegally sufficient proof that the defendant intended to cause the victim serious physical injurybased upon his conduct, and [in] consideration of all the surrounding circumstances."
In reaching the merits of defendant's legal sufficiency contention, the majority tacitlyconcludes that the court implicitly denied defendant's motion when it rendered its guilty verdict,likely due to the court's reference to the "legally sufficient proof" supporting its finding of guilt. Irespectfully disagree with this approach for two reasons. First, as noted above, the court did notdetermine defendant's motion as required by the Criminal Procedure Law, but instead renderedits verdict. Second, this Court's precedent in applying LaFontaine and its progeny hasrepeatedly rejected reliance on a court's "implicit" determinations to reach the merits of an issueand instead requires that a court must "expressly 'decide [an] issue adversely to [a]defendant' " before we may consider it on appeal (People v Gainey, 130 AD3d1504, 1505 [4th Dept 2015] [emphasis added]; see Capitano, 198 AD3d at 1325;Spratley, 96 AD3d at 1421). In my view, that precedent does not permit us to construe thecourt's verdict as the required determination of defendant's motion.
I nevertheless agree with the majority that the court's verdict statement supports a fairinference that it implicitly denied defendant's motion, even though it made no express statementto that effect. The same could reasonably be said whenever a court convicts a defendant in anonjury trial inasmuch as "[t]rial judges . . . are presumed to know the law and toapply it in making their decisions" (People v Barthel, 199 AD3d 32, 36 [4th Dept 2021],lv denied 37 NY3d 1058 [2021] [internal quotation marks omitted]), and a nonjuryverdict of guilt presumptively requires the court to first conclude that there is legally sufficientevidence supporting the conviction. Indeed, but for this Court's precedent applying theLaFontaine rule to a trial court's failure to rule on motions for a trial order of dismissal ina nonjury context (see e.g. Capitano, 198 AD3d at 1324; White, 134 AD3d at1415), I would have no objection to the majority's more practical result, which, I note, also servesthe interest of judicial economy. Nonetheless, given our precedent, I respectfully disagree withthe majority's parsing of the court's words to conclude that it determined the motion; such agranular focus on the words the court uttered when rendering its verdict to conclude that themotion had been decided invites only inconsistency and unpredictability.Present—Whalen, P.J., Smith, Carni, Curran and DeJoseph, JJ.