Opinion
680.5 KA 18-02097
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Loirmus DESIUS, Also Known as Baboo, Defendant-Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of assault in the second degree ( Penal Law § 120.05 [4] ) and dismissing count three of the indictment and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree ( Penal Law § 120.05 [1] [intentional assault], [4] [reckless assault] ), arising from an altercation during which he punched the victim in the face approximately three times, causing the victim to fall and hit his head on the concrete sidewalk, then continued to punch the victim while he was lying on the ground unconscious. The victim died as a result of his injuries. We previously held the case, reserved decision, and remitted the matter to County Court for a ruling on defendant's objection to the verdict as inconsistent (see People v. Desius , 178 A.D.3d 1422, 1422-1423, 112 N.Y.S.3d 656 [4th Dept. 2019] ). On remittal, the court determined, for the reasons set forth in its written decision on the verdict, that its verdict convicting defendant of both intentional and reckless assault is not inconsistent.
Defendant contends that the evidence is legally insufficient to support the conviction of assault in the second degree ( Penal Law § 120.05 [1] [intentional assault] ) under the fourth count of the indictment because the People failed to establish that he intended to cause serious physical injury to the victim. We reject that contention. "[V]iewing the facts in a light most favorable to the People," we conclude that the evidence is legally sufficient to establish that defendant intended to cause serious physical injury to the victim ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Ford , 114 A.D.3d 1273, 1274, 980 N.Y.S.2d 219 [4th Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ; People v. Meacham , 84 A.D.3d 1713, 1714, 922 N.Y.S.2d 721 [4th Dept. 2011], lv denied 17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 [2011] ). Intent can be proven by circumstantial evidence (see People v. Wiley , 104 A.D.3d 1314, 1314, 960 N.Y.S.2d 841 [4th Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1287 [2013] ), and "[a] defendant may be presumed to intend the natural and probable consequences of his [or her] actions" ( Ford , 114 A.D.3d at 1274, 980 N.Y.S.2d 219 [internal quotation marks omitted]; see Meacham , 84 A.D.3d at 1714, 922 N.Y.S.2d 721 ).
Here, eyewitnesses to the altercation testified that defendant repeatedly punched the victim while he was lying unconscious on the sidewalk. Under the circumstances, serious physical injury was the natural and probable consequence of defendant's actions (see Ford , 114 A.D.3d at 1274, 980 N.Y.S.2d 219 ; Meacham , 84 A.D.3d at 1714, 922 N.Y.S.2d 721 ). Defendant's expressions of anger toward the victim also support the inference that defendant intended to cause serious physical injury (see Meacham , 84 A.D.3d at 1714, 922 N.Y.S.2d 721 ; see generally People v. Bracey , 41 N.Y.2d 296, 301-302, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977], rearg denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194 [1977] ).
We also reject defendant's contention that the verdict convicting him of intentional assault is against the weight of the evidence (see People v. Cooper , 50 A.D.3d 1570, 1571, 855 N.Y.S.2d 787 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ; People v. Mahoney , 6 A.D.3d 1104, 1104, 776 N.Y.S.2d 402 [4th Dept. 2004], lv denied 3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575 [2004] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We agree with defendant, however, that the evidence is not legally sufficient to support the conviction of assault in the second degree ( Penal Law § 120.05 [4] [reckless assault] ) under the third count of the indictment. Although a sidewalk or concrete surface can be "used" as a dangerous instrument ( People v. Galvin , 65 N.Y.2d 761, 763, 492 N.Y.S.2d 25, 481 N.E.2d 565 [1985] ; see People v. Al Haideri , 141 A.D.3d 742, 745, 36 N.Y.S.3d 244 [3d Dept. 2016], lv denied 28 N.Y.3d 1025, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ; People v. Melville , 298 A.D.2d 601, 601, 749 N.Y.S.2d 65 [2d Dept. 2002], lv denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ), the testimony of the eyewitnesses establishes that the blows to the victim, which were delivered using a cross-wise motion, were not executed in such a way as to establish that defendant consciously disregarded a substantial and unjustifiable risk that the victim's head would have contact with the concrete (cf. Galvin , 65 N.Y.2d at 762, 492 N.Y.S.2d 25, 481 N.E.2d 565 ; Al Haideri , 141 A.D.3d at 745, 36 N.Y.S.3d 244 ; Melville , 298 A.D.2d at 601, 749 N.Y.S.2d 65 ). Under the circumstances presented, there is no "valid line of reasoning and permissible inferences from which a rational [person]" could conclude that defendant recklessly used the sidewalk as a dangerous instrument ( Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; see People v. McElroy , 139 A.D.3d 980, 982, 31 N.Y.S.3d 593 [2d Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 381, 68 N.E.3d 110 [2016] ). We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree ( Penal Law § 120.05 [4] ) and dismiss count three of the indictment.
In light of our determination, defendant's further contention that the verdict with respect to count three is against the weight of the evidence is moot (see People v. Jones , 100 A.D.3d 1362, 1365, 953 N.Y.S.2d 416 [4th Dept. 2012], lv denied 21 N.Y.3d 1005, 971 N.Y.S.2d 257, 993 N.E.2d 1279 [2013], cert denied 571 U.S. 1077, 134 S.Ct. 694, 187 L.Ed.2d 560 [2013] ), as is his contention that the verdict convicting him of counts three and four of the indictment is inconsistent (see People v. Jackson , 111 A.D.2d 253, 254, 489 N.Y.S.2d 534 [2d Dept. 1985] ). We note, however, that the court erred in determining that Penal Law § 120.05 (1) and (4) have two different results, i.e., that the former results in "serious physical injury" and the latter results in "grave risk of injury to another person." Contrary to the court's determination, both subdivisions state that the result is "serious physical injury," and it is well settled that a person cannot act both recklessly and intentionally in causing the same result (see People v. Gallagher , 69 N.Y.2d 525, 529, 516 N.Y.S.2d 174, 508 N.E.2d 909 [1987] ; see also People v. Finkelstein , 144 A.D.2d 250, 250, 533 N.Y.S.2d 721 [1st Dept. 1988], lv denied 73 N.Y.2d 921, 539 N.Y.S.2d 306, 536 N.E.2d 635 [1989] ).
Defendant contends that the court erred in denying his request for a missing witness charge. We reject that contention. Defendant failed to make a prima facie showing of entitlement to a missing witness charge because he did not establish the materiality of the witnesses' knowledge (see People v. Smith , 33 N.Y.3d 454, 458-459, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019] ; People v. Savinon , 100 N.Y.2d 192, 197, 761 N.Y.S.2d 144, 791 N.E.2d 401 [2003] ).
Although defendant correctly contends that he was improperly restrained during the trial because the court failed to make the requisite "case-specific, on-the-record finding of necessity" ( People v. Clyde , 18 N.Y.3d 145, 153, 938 N.Y.S.2d 243, 961 N.E.2d 634 [2011], cert denied 566 U.S. 944, 132 S.Ct. 1921, 182 L.Ed.2d 784 [2012] ; see People v. Best , 19 N.Y.3d 739, 742, 955 N.Y.S.2d 860, 979 N.E.2d 1187 [2012] ), we conclude that the error was harmless in this nonjury trial. The evidence of defendant's guilt with respect to the fourth count of the indictment is overwhelming, and there is no reasonable possibility that the error contributed to the verdict (see Clyde , 18 N.Y.3d at 154, 938 N.Y.S.2d 243, 961 N.E.2d 634 ; see also People v. Morillo , 104 A.D.3d 792, 794, 960 N.Y.S.2d 224 [2d Dept. 2013], lv denied 22 N.Y.3d 1201, 986 N.Y.S.2d 421, 9 N.E.3d 916 [2014] ).
Defendant failed to preserve for this Court's review his contention that the court violated CPL 380.50 by not asking him if he wished to make a statement at sentencing (see People v. Green , 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415 [1981] ). In any event, the court substantially complied with CPL 380.50 by asking defense counsel if he wished to be heard prior to the imposition of sentence (see generally People v. McClain , 35 N.Y.2d 483, 491, 364 N.Y.S.2d 143, 323 N.E.2d 685 [1974], cert denied 423 U.S. 852, 96 S.Ct. 98, 46 L.Ed.2d 76 [1975] ).
We reject defendant's contention that he was denied effective assistance of counsel at sentencing because defense counsel failed to request a lesser sentence. The evidence establishes that defendant was the aggressor throughout the altercation that resulted in the victim's death, and defendant's extensive criminal history included a prior assault conviction. Thus, "given the nature of defendant's criminal record and the criminal conduct herein, ... no statement made by defense counsel at sentencing would have had an impact on the sentence imposed" ( People v. Price , 129 A.D.3d 1484, 1485, 10 N.Y.S.3d 375 [4th Dept. 2015], lv denied 26 N.Y.3d 970, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] [internal quotation marks omitted] ), and counsel was not required to make a request "with little or no chance of success" ( People v. Nuffer , 70 A.D.3d 1299, 1300, 894 N.Y.S.2d 698 [4th Dept. 2010] ).
Contrary to defendant's further contentions, the record fails to establish that the court improperly sentenced him as a first rather than a second violent felony offender, and the sentence is not unduly harsh or severe. Finally, we note that the certificate of conviction incorrectly states that counts one and two of the indictment were satisfied by the conviction on count three. The court indicated, however, in rendering its verdict, that it did not consider counts one and two. The certificate of conviction must therefore be amended to reflect that the court did not consider those counts (see generally People v. Gause , 46 A.D.3d 1332, 1333, 848 N.Y.S.2d 495 [4th Dept. 2007], lv dismissed 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008] ).