Opinion
05-10-2024
The PEOPLE of the State of New York, Respondent, v. Dewayne A. MCGUIRE, Defendant-Appellant.
FELDMAN AND FELDMAN, MANHASSET (STEVEN A. FELDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Philip J. Roche, J.), rendered August 31, 2021. The appeal was held by this Court by order entered July 28, 2023, the decision was reserved and the matter was remitted to Steuben County Court for further proceedings (218 A.D.3d 1357 [4th Dept. 2023]). The proceedings were held and completed.
FELDMAN AND FELDMAN, MANHASSET (STEVEN A. FELDMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law § 120.10 [1]), assault in the second degree (§ 120.05 [2]), criminal mischief in the third degree (§ 145.05 [2]), and tampering with physical evidence (§ 215.40 [2]). We previously held this case, reserved decision, and remitted the matter to County Court for a ruling on defendant’s motion for a trial order of dismissal (People v. McGuire, 218 A.D.3d 1357, 194 N.Y.S.3d 645 [4th Dept. 2023]). On remittal, the court denied the motion. We now affirm. [1–3] Defendant contends that his conviction of each offense is based on legally insufficient evidence of intent. We reject that contention. Here, there is "a valid line of reasoning and permissible inferences which could lead a rational person to the same conclusion as the [factfinder]" (People v. Ferguson, 177 A.D.3d 1247, 1248, 112 N.Y.S.3d 368 [4th Dept. 2019] [internal quotation marks omitted]). "It is well settled that [a] defendant may be presumed to intend the natural and probable consequences of [their] actions …, and [i]ntent may be inferred from the totality of conduct of the accused" (People v. Meacham, 151 A.D.3d 1666, 1668, 57 N.Y.S.3d 279 [4th Dept. 2017], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 584, 89 N.E.3d 1264 [2017] [internal quotation marks omitted]; see 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]). Here, "viewing the facts in a light most favorable to the People" (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the evidence is legally sufficient to establish that defendant intended to cause "serious physical injury" (Penal Law § 120.10 [1]) and "physical injury" (§ 120.05 [2]) to another person by aiming a shotgun at a moving vehicle and pulling the trigger from only 20 yards away (see People v. Appuzie, 9 A.D.3d 273, 273, 779 N.Y.S.2d 210 [1st Dept. 2004], lv denied 3 N.Y.3d 670, 784 N.Y.S.2d 8, 817 N.E.2d 826 [2004]). In addition, the People presented evidence that defendant said, "I got ‘em" after the shooting (see People v. Laufer, 187 A.D.3d 1052, 1052-1053, 133 N.Y.S.3d 592 [2d Dept. 2020], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 139, 167 N.E.3d 1274 [2021], reconsideration denied 37 N.Y.3d 958, 147 N.Y.S.3d 504, 170 N.E.3d 378 [2021]). Even defendant’s other purported statements that were less incriminating allow for an inference that defendant intended to fire and injure those inside the vehicle. Similarly, the facts establish that defendant intended "to damage property of another person" (§ 145.05; see People v. Bodine, 231 A.D.2d 840, 840, 648 N.Y.S.2d 394 [4th Dept. 1996], lv denied 89 N.Y.2d 862, 653 N.Y.S.2d 285, 675 N.E.2d 1238 [1996]). Additionally, the testimony that defendant asked a friend to "hold" the shotgun after the incident supports an intent "to prevent" the production or use of physical evidence in an official proceeding (§ 215.40 [2]; see People v. Thompson, 75 A.D.3d 760, 764, 904 N.Y.S.2d 797 [3d Dept. 2010], lv denied 15 N.Y.3d 896, 912 N.Y.S.2d 584, 938 N.E.2d 1019 [2010]).
[4, 5] Although defendant failed to preserve for our review his additional contention that his conviction for assault in the first degree is based on legally insufficient evidence of serious physical injury because his motion for a trial order of dismissal was not specifically directed at the alleged error raised on appeal (see generally People v. Winston., 220 A.D.3d 1161, 1161, 197 N.Y.S.3d 818 [4th Dept. 2023], lv denied 41 N.Y.3d 967, 208 N.Y.S.3d 539, 232 N.E.3d 217 [2024]; People v. Cooley, 220 A.D.3d 1189, 1189, 197 N.Y.S.3d 790 [4th Dept. 2023], lv denied 41 N.Y.3d 964, 208 N.Y.S.3d 540, 232 N.E.3d 218 [2024]), we "necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of defendant’s challenge to the weight of the evidence" (People v. Cartagena, 149 A.D.3d 1518, 1518, 54 N.Y.S.3d 230 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017], reconsideration denied 30 N.Y.3d 1018, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] [internal quotation marks omitted]). Here, the evidence established that the passenger of the vehicle suffered a hole in her eardrum and a loss of hearing that had not resolved at the time of the trial. Thus, we conclude that the verdict on the assault in the first degree charge is not against the weight of the evidence with respect to the element of serious physical injury (see Penal Law § 10.00 [10]; People v. Hildenbrandt, 125 A.D.2d 819, 820, 509 N.Y.S.2d 919 [3d Dept. 1986], lv denied 69 N.Y.2d 881, 515 N.Y.S.2d 1029, 507 N.E.2d 1099 [1987]; see also People v. Garland, 155 A.D.3d 527, 528, 65 N.Y.S.3d 167 [1st Dept. 2017], affd 32 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071 [2018], rearg denied 33 N.Y.3d 970, 100 N.Y.S.3d 213, 123 N.E.3d 872 [2019], cert denied — U.S. —, 140 S.Ct. 2525, 206 L.Ed.2d 472 [2020]).
We also reject defendant’s remaining grounds for contending that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that, although a different verdict would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).
The record does not support the contention of defendant that the court penalized him for exercising his right to a trial by imposing a more severe sentence than offered as part of a plea bargain (see People v. Pena, 50 N.Y.2d 400, 411-412, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [1980], rearg denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799 [1980], cert denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814 [1981]; People v. Jackson, 94 A.D.3d 1559, 1561, 943 N.Y.S.2d 365 [4th Dept. 2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012]). Contrary to defendant’s further contention, the sentence is not unduly harsh or severe.
We have reviewed defendant’s remaining contentions and conclude that none warrants reversal or modification of the judgment.