The opinion of the court was delivered by: Spain, J.
Calendar Date: April 27, 2009
Before: Mercure, J.P., Spain, Malone Jr., Kavanagh and McCarthy, JJ.
Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered April 12, 2007, upon a verdict convicting defendant of the crimes of assault in the second degree, criminal possession of a weapon in the third degree, criminal contempt in the first degree, criminal mischief in the fourth degree, resisting arrest and criminal contempt in the second degree.
After a jury trial, defendant was convicted of assault in the second degree, criminal possession of a weapon in the third degree, criminal contempt in the first degree and other crimes resulting from an incident in a bar in the City of Troy, Rensselaer County, in the early morning hours of March 31, 2006.
It was undisputed that defendant's girlfriend arrived at the bar, yelling at defendant about him taking her keys. An argument erupted, during which another patron, Zachary Butler, sustained a cut to his left arm while attempting to intervene in the heated dispute between defendant and his girlfriend, for whom a stay-away order of protection against defendant had recently been issued. Defendant was expelled from the bar, which was then locked. After banging on the doors to the bar, defendant punched the front window, breaking it, for which he was convicted of criminal mischief. Defendant then went to the girlfriend's home, where he was arrested after a struggle with police, leading to the convictions for resisting arrest and criminal contempt in the second degree. Sentenced to an aggregate prison term of seven years, defendant appeals.
Initially, defendant's challenge to County Court conducting a bifurcated Wade hearing lacks merit. At the People's request, the court first heard testimony addressing the procedures employed in three consecutive photo arrays shown to Butler, and it ruled that they were unduly suggestive. The court then permitted the People to call Butler as a witness to testify regarding his observations of defendant during the incident, after which the court determined that he had an independent source for an in-court identification of defendant. While prosecutors have been advised -- for appellate review purposes -- "to come forward with any independent source evidence at a Wade hearing so that the suppression court may, where appropriate, rule in the alternative" (People v Wilson, 5 NY3d 778, 780 ), "the People have no burden to come forward with independent source evidence in every case absent a showing that a pretrial identification procedure is impermissibly suggestive" (People v Burts, 78 NY2d 20, 24 ). Thus, the bifurcated approach was permissible.
We are also unpersuaded by defendant's challenges to the legal sufficiency and weight of the evidence, which focus on the fact that the weapon used to cut Butler was not observed by any of the witnesses or recovered by police when they responded to the scene. The defense theory at trial was that Butler cut his arm during the struggle on a jagged edge of the metal strip located on the bar's footrest. Initially, assault in the second degree required proof that defendant intentionally caused physical injury to Butler by means of a deadly weapon or dangerous instrument (see Penal Law § 120.05 ). Defendant's challenge to the sufficiency of the proof that Butler sustained a physical injury was not properly preserved by a specific motion (see People v Gray, 86 NY2d 10, 19 ) and, in any event, the testimony of Butler and the medical examiner, a forensic pathologist, established that he sustained a very painful 29 centimeter cut which required 35 stitches. Thus, the People established that Butler suffered the requisite injury to sustain the assault conviction (see People v Amato, 1 AD3d 713, 715 , lv denied 1 NY3d 594 ; People v Shannon, 273 AD2d 505, 506-507 , lvs denied 95 NY2d 892, 893 ; see also Penal Law § 10.00 ).
With regard to the adequacy of the proof that defendant inflicted this injury by means of a deadly weapon or dangerous instrument (see Penal Law § 10.00 , ), an issue that was preserved by defense counsel's motions for a trial order of dismissal, we find that the evidence adduced at trial sufficiently established this element of the assault and criminal possession counts notwithstanding the fact that the witnesses never saw the weapon and police were not able to recover it (see People v Wade, 274 AD2d 438, 439 , lv denied 95 NY2d 939 ). Butler testified that as he held defendant back from the girlfriend with his left hand and looked away, defendant cut his left arm with an unseen object, and then defendant -- looking directly at Butler -- immediately stated, "I made Superman*fn1 bleed.
I cut ya." and "Where's my blade?" Butler further testified that Raymond Bronk, a part owner of the bar, responded that he had "kicked it out the door." The medical examiner testified that Butler's cut was "very linear" and "very thin" and that it was consistent with a "sharp edged weapon or tool," such as a razor blade. He opined that the cut was "not a jagged, tearing wound" or consistent with a wound that would be caused by falling onto a jagged piece of metal, as the defense posited. Viewing the evidence most favorably to the prosecution, we find that the People sufficiently proved defendant's possession of a dangerous instrument or deadly weapon and intentional conduct using that weapon to cause injury to Butler (see People v Bleakley, 69 NY2d 490, 494-495 ; People v Abera, 2 AD3d 1155, 1156 , lv denied 1 NY3d 624 ; People v Wade, 274 AD2d at 439).
Turning to defendant's claim that the convictions are contrary to the weight of the evidence because Butler's testimony was either contradicted or not supported by that of the other eyewitnesses, we are unpersuaded. While a different finding -- on the assault and criminal possession convictions -- would not have been unreasonable, upon weighing "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People ex rel. MacCracken v Miller, 291 NY 55, 62 ), we do not conclude that "the trier of fact has failed to give the evidence the weight it should be accorded" (People v Bleakley, 69 NY2d at 495; see People v Danielson, 9 NY3d 342, 348-349 ; People v Romero, 7 NY3d 633, 643-644 ). Defendant and defense witnesses testified, essentially, that Butler unnecessarily and aggressively intervened in a purely verbal confrontation between defendant and his girlfriend and, when Butler held defendant in a bear hug from behind, the bartender (Christine Roberts) attempted to separate defendant and Butler; during the struggle, defendant, Butler and Roberts all fell to the floor, at which point Butler must have cut his arm on a protruding jagged piece of metal on the footrest, as depicted in pictures taken subsequent to the incident that were introduced by the defense at trial. Defendant denied cutting Butler, possessing a knife or sharp-edged weapon or making the statements attributed to him; none of the defense witnesses saw a weapon or overheard defendant's remarks as recounted by Butler.
However, as the jury verdict implicitly reflects, the defense witnesses were neither unbiased nor particularly credible. The girlfriend, who had an infant with and was partially supported by defendant, admitted she still loved him and there was evidence that she continued to have contact with him despite the order of protection. Roberts, the bartender, was a personal friend of defendant and the girlfriend and, until months before the incident, had a long-term live-in relationship with defendant's brother; she signed a written statement in which she lied to police after the incident when she claimed, among other things, that an unknown white male was the perpetrator in an effort to protect defendant. Bronk, the part owner who denied kicking a weapon out the door after Butler was cut, was admittedly intoxicated that night and had known defendant for 25 years.
In our view, the defense witnesses' supposition that Butler was cut on a piece of metal near the floor was a speculative theory, first suggested to police more than a month afterward, which was contrary to the physical evidence -- e.g., the blood markings on the floor and the parties' clothing, and the medical testimony -- and was not especially believable. Further, the police officer who examined and photographed the scene immediately after the incident did not see the metal protrusion, which is not observable in his photographs. The officer testified that the defense photographs -- which were taken on an unknown subsequent date -- did not accurately reflect the condition of the footrest on the date of the incident and that it appeared as if the metal piece had since been "pried out." The few inconsistencies or shortcomings in Butler's testimony were fully explored at trial and were not of the type that rendered him unworthy of belief. According great deference to its first-hand opportunity to assess the credibility, observations, and motives of all of the witnesses, we do not find that the jury failed to give the evidence the weight it deserved (see People v Bleakley, 69 NY2d at 495; People v Casey, 61 AD3d 1011, 1013-1014 ).
Defendant's challenge to the legal sufficiency of the evidence supporting his conviction of criminal contempt in the first degree is unpreserved and, further, lacks merit. Butler's testimony constituted sufficient proof that, in violation of a known order of protection, defendant subjected his girlfriend to "physical contact" -- striking her in the head -- and did so "with intent to harass, annoy, threaten or alarm" her (Penal Law § 215.51 [b] [v]; see People v Gorham, 17 AD3d 858, 859 ). While defendant and the girlfriend denied that he struck her and none of the other witnesses admitted seeing him do so, Bronk testified to seeing defendant pin her against a wall, holding her hands over her head so she could not get away during their altercation. The jury, by its verdict, credited Butler's testimony while rejecting the defense witness denials, and rationally inferred defendant's intent from his violent conduct, and we see no reason to disturb that verdict (see People v Bleakley, 69 NY2d at 495; People v ...