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People v. Sands

Supreme Court of New York, Third Department

January 18, 2018

SHAUN SANDS, Appellant.

          Calendar Date: November 13, 2017

          Mark Diamond, Albany, for appellant.

          J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.

          Before: Garry, P.J., Clark, Mulvey, Aarons and Rumsey, JJ.


          Aarons, J.

         Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered September 25, 2015, upon a verdict convicting defendant of the crime of assault in the second degree.

         Defendant, an inmate at Washington Correctional Facility, was charged in a multicount indictment stemming from an altercation with a correction officer (hereinafter the victim). Following a jury trial, defendant was convicted of assault in the second degree. County Court thereafter sentenced defendant, as a second felony offender, to six years in prison followed by five years of postrelease supervision. Defendant appeals. We affirm.

         Defendant argues that the verdict was not supported by legally sufficient evidence and that it was against the weight of the evidence. As relevant here, assault in the second degree requires that the People prove that defendant, with the intent to prevent a peace officer from performing a lawful duty, caused physical injury to such peace officer (see Penal Law § 120.05 [3]). At trial, the victim testified that doors to inmate dormitories are kept locked and, if an inmate wishes to enter a dormitory, the inmate presses a buzzer. On the day in question, defendant initially pressed the buzzer once and then, for a second time, held the buzzer down for an extended period. The victim responded and told defendant to release the buzzer. The victim stated that, as he counseled defendant on how to properly use the buzzer to gain entry into the dormitory, defendant "launched towards [him], ... grabbed [his] chest, uniform... and shoved [him] against the door." The victim gave defendant an order to stop resisting, but defendant "rammed [him] again." While the victim was able to pin defendant on the ground, defendant grabbed the victim's throat. The victim activated his personal alarm system to call out for assistance. Other correction officers arrived and helped subdue defendant. The victim testified that, after the incident ended, he "was in so much pain" and received medical treatment at a hospital. The victim subsequently underwent shoulder surgery and was seeing a chiropractor.

         Viewing this evidence in a light favorable to the People, we conclude that the verdict was supported by legally sufficient evidence (see People v Smith, 89 A.D.3d 1148, 1148-1149 [2011], lv denied 19 N.Y.3d 968');">19 N.Y.3d 968 [2012]). While defendant contends that evidence was lacking to demonstrate that he intended to injure the victim, Penal Law § 120.05 (3) "makes clear that no intent to cause [physical] injury need be proven" (People v Harmon, 264 A.D.2d 941, 942 [1999]). Nor do we find merit in defendant's argument that there was insufficient evidence establishing that he caused a physical injury to the victim (see People v Iovino, 149 A.D.3d 1350, 1352 [2017], lv denied 30 N.Y.3d 950');">30 N.Y.3d 950 [2017]; People v Holloway, 261 A.D.2d 658, 660 [1999], lv denied 93 N.Y.2d 972');">93 N.Y.2d 972 [1999]). Furthermore, when viewing the evidence in a neutral light, we conclude that the verdict was not against the weight of the evidence (see People v Davis, 105 A.D.3d 1095, 1096 [2013], lv denied 21 N.Y.3d 1003');">21 N.Y.3d 1003 [2013]). To the extent that defendant calls into question the veracity of the victim's testimony, we accord deference to the jury's credibility determinations (see People v Novak, 148 A.D.3d 1352, 1356 [2017], lv denied 29 N.Y.3d 1084');">29 N.Y.3d 1084 [2017]; People v Garcia, 141 A.D.3d 861, 863 [2016], lv denied 28 N.Y.3d 929');">28 N.Y.3d 929 [2016]).

         We reject defendant's argument that he was entitled to a justification charge. "Although the record must be considered in the light most favorable to the accused, a court need not charge justification if no reasonable view of the evidence establishes the elements of the defense" (People v Reynoso, 73 N.Y.2d 816, 818 [1988] [citations omitted]; see People v Johnson, 91 A.D.3d 1121, 1122 [2012], lv denied 18 N.Y.3d 959');">18 N.Y.3d 959 [2012]). Because no reasonable view of the evidence reflects that the victim was the initial aggressor, even when considered in a light favorable to defendant, County Court properly denied defendant's request for a justification charge (see People v Kerley, 154 A.D.3d 1074, 1075-1076 [2017]; People v Boyd, 97 A.D.3d 898, 900 [2012], lv denied 20 N.Y.3d 1009');">20 N.Y.3d 1009 [2013]; People v Carter, 74 A.D.3d 1375, 1378 [2010], lvs denied 15 N.Y.3d 772 [2010]).

         Defendant contends that the verdict was repugnant because he was acquitted of a separate count of assault in the second degree (see Penal Law § 120.05 [7]). This contention, however, is unpreserved in light of defendant's failure to raise this alleged error prior to the discharge of the jury (see People v Rodwell, 122 A.D.3d 1065, 1068 [2014], lv denied 25 N.Y.3d 1170');">25 N.Y.3d 1170 [2015]; People v Pearson, 69 A.D.3d 1226, 1227 [2010], lv denied 15 N.Y.3d 755');">15 N.Y.3d 755 [2010]). In any event, this claim is without merit (see generally People v Muhammad, 17 N.Y.3d 532, 539-540 [2011]). To that end, we disagree with defendant's assertion that his counsel was ineffective based upon his counsel's failure to object to the verdict as repugnant (see People v Perry, 154 A.D.3d 1168, 1171-1172 [2017]; People v Stroud, 91 A.D.3d 1026, 1027-1028 [2012]; People v Bachert, 133 A.D.2d 482, 482-483 [1987], lv dismissed 70 N.Y.2d 797');">70 N.Y.2d 797 [1987]). Taking into account that defense counsel made pretrial motions, presented cogent opening and closing statements and attacked the credibility of the People's witnesses and the fact that defendant was acquitted of certain counts, we find that defendant was not deprived of meaningful representation (see People v Place, 152 A.D.3d 976, 980 [2017]; People v Roach, 119 A.D.3d 1070, 1072-1073 [2014], lv denied 24 N.Y.3d 1221');">24 N.Y.3d 1221 [2015]; People v Davis, 105 A.D.3d at 1098).

         Finally, defendant argues that he was improperly sentenced as a second felony offender because he was not informed of his right to contest the validity of the factual and legal basis of the prior felony. Defendant, however, failed to preserve this issue for our review by not raising an objection on this ground during sentencing (see People v Melton, 136 A.D.3d 1069, 1070 [2016], lv denied 27 N.Y.3d 1002');">27 N.Y.3d 1002 [2016]). Even if preserved, the record demonstrates that County Court substantially complied with CPL 400.21 (3) (see People v Hummel, 127 A.D.3d 1506, 1507 [2015], lv denied 25 N.Y.3d 1202');">25 N.Y.3d 1202 [2015]).

          Garry, P.J., Clark, Mulvey and ...

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