Opinion
107964
06-14-2018
The PEOPLE of the State of New York, Respondent, v. Unique KING, Appellant.
Carolyn B. George, Albany, for appellant.
Carolyn B. George, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel, Fredonia), for respondent.
Before: Lynch, J.P., Devine, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J.
Appeal from a judgment of the County Court of Schenectady County (Murphy III, J.), rendered September 9, 2015, upon a verdict convicting defendant of the crimes of assault in the second degree, attempted assault in the second degree and criminal possession of stolen property in the fifth degree.
Defendant was indicted on charges stemming from his role in affrays at a house party in the City of Schenectady, Schenectady County and their aftermath. Following a jury trial, he was convicted of assault in the second degree, attempted assault in the second degree and criminal possession of stolen property in the fifth degree. County Court sentenced him, as a second felony offender, to an aggregate prison term of seven years to be followed by postrelease supervision of five years, and he now appeals. We affirm. Defendant argues that the verdict was not supported by legally sufficient evidence but, having failed to renew his motion for a trial order of dismissal at the close of all proof, that challenge is unpreserved (see People v. Williams, 156 A.D.3d 1224, 1225, 69 N.Y.S.3d 367 [2017], lv denied 31 N.Y.3d 1018, 2018 WL 2169699 [2018] ; People v. Odofin, 153 A.D.3d 972, 974, 59 N.Y.S.3d 842 [2017] ). He also contends that the verdict was against the weight of the evidence, an analysis that requires us to evaluate whether the elements of the crimes were proven beyond a reasonable doubt (see People v. Rosario, 157 A.D.3d 988, 989, 69 N.Y.S.3d 149 [2018] ; People v. Williams, 156 A.D.3d at 1225, 69 N.Y.S.3d 367 ). In that regard, assuming that "an acquittal would not have been unreasonable," we will "weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions ... [to] decide[ ] whether the jury was justified in finding the defendant guilty" ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; accord People v. Kancharla, 23 N.Y.3d 294, 303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ; see People v. Rosario, 157 A.D.3d at 989, 69 N.Y.S.3d 149 ).
Defendant was later resentenced on his conviction for attempted assault in the second degree. The resentencing had no impact upon the aggregate sentence, and he does not appeal from that judgment.
The area around the house descended into chaos on the night of the party, and that chaos was detailed in testimony from the two victims, Cameron Wynn and Liam Munro, as well as that of defendant and other attendees. As is relevant here, Munro testified that he was dragged down and attacked by multiple people, whom he was unable to identify, after he attempted to break up a fight involving one of his friends. Wynn was outside investigating the "ruckus" and testified to seeing Munro, a friend and former classmate, lying against the tire of a sport utility vehicle and being "viciously stomp[ed]" in the head by defendant and kicked in the body by another man. Wynn intervened and tried to pull defendant away from Munro, at which point several men attacked Wynn as well. A free-for-all ensued in which, according to Wynn, defendant repeatedly struck him in the head with a handgun and caused him to bleed profusely. These attacks caused injuries to both Munro and Wynn that were far from trivial, which both men described in detail and explained how they led to prolonged difficulties and discomfort.
Wynn realized, as he was preparing to leave the party to seek medical attention, that his cellular phone and wallet were missing. One of his friends called the phone to request its return and was rebuffed by the man who answered. The authorities were summoned after Wynn arrived at the hospital, and police, relying upon tracking information from a locator app, went to defendant's residence and found him in possession of Wynn's phone. Police further noted defendant's sport utility vehicle parked outside and observed what was later identified to be Wynn's blood on it.
It is true that Wynn's account varied somewhat over time and that Munro believed a white man—which defendant is not—was one of his attackers. Defendant also testified in his own defense and denied taking part in the fights or receiving a call demanding the return of Wynn's phone. That being said, defendant acknowledged that he was at the party with his vehicle and that he found Wynn's phone and intended to keep it. Defendant's account was further called into question by his acknowledgment that he had hatched a plot to bribe Wynn into silence, as well as the testimony of a partygoer who observed defendant fighting in the manner described by Wynn. The host of the party also testified as to his conversation with defendant in which defendant stated that he had "cracked some kid in the head pretty bad" and gotten caught because he took "a kid's cell phone" that was traced to him. The jury could readily credit the proof of defendant's involvement in the charged acts to find that he had committed assault in the second degree by pistol whipping Wynn with the realized intent of causing physical injury (see Penal Law § 120.05[2] ; see e.g. People v. Romero, 147 A.D.3d 1490, 1491–1492, 47 N.Y.S.3d 598 [2017], mod on rearg 148 A.D.3d 1726, 49 N.Y.S.3d 324 [2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ), attempted assault in the second degree by "viciously" stomping Munro in the head with the unrealized intent of causing serious physical injury (see Penal Law §§ 110.00, 120.05[1] ; People v. Miller, 290 A.D.2d 814, 815, 736 N.Y.S.2d 773 [2002], lv denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232 [2002] ) and criminal possession of stolen property in the fifth degree by taking someone else's phone and intending to keep it for his own use despite a demand for its return (see Penal Law §§ 155.05[2][b] ; 165.40; People v. Guarino, 55 A.D.3d 473, 474, 867 N.Y.S.2d 52 [2008], lv denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444 [2009] ). Thus, deferring to the jury's ability to view the witnesses and assess their credibility (see People v. Kancharla, 23 N.Y.3d at 303, 991 N.Y.S.2d 1, 14 N.E.3d 354 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), we cannot say that the verdict was against the weight of the evidence.
Finally, in view of defendant's criminal record and the nature of the present offenses, we do not perceive an "abuse of discretion or extraordinary circumstances warranting a modification" of the sentences imposed ( People v. Taylor, 134 A.D.3d 1165, 1170, 20 N.Y.S.3d 708 [2015], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ; see People v. Ferrer, 115 A.D.3d 1113, 1114, 982 N.Y.S.2d 410 [2014] ).
ORDERED that the judgment is affirmed.
Lynch, J.P., Mulvey, Aarons and Pritzker, JJ., concur.