Opinion
No. 570801/12.
01-27-2016
The PEOPLE of the State of New York, Respondent, v. Robert MUIER a/k/a Robert Maier, Defendant–Appellant.
Judgment of conviction (Anthony J. Ferrara, J.), rendered June 13, 2012, modified on the law, to vacate defendant's conviction for attempted criminal mischief in the fourth degree and to dismiss the count of the accusatory instrument relating thereto and, as modified, affirmed.
The verdict convicting defendant of attempted assault in the third degree (see Penal Law §§ 110.00/120.00[1] ) was based on legally sufficient evidence and was not against the weight of the evidence. The trial court, as fact finder, reasonably could conclude that when defendant punched the complainant cab driver in the face, causing redness and swelling, he did so with intent to cause physical injury (see Penal Law 120.00[1] ; Matter of Edward H., 61 AD3d 473, 473 [2009] ; Matter of Marcel F., 233 A.D.2d 442, 442–443 [1996] ).
We further find that the evidence was legally sufficient to disprove defendant's defense of justification beyond a reasonable doubt. Contrary to defendant's contention, the complainant's credited testimony established that defendant's attack was not preceded by any conduct by the complainant—verbal or physical—that would support a reasonable belief that the use of physical force against defendant was imminent (see People v. Goetz, 68 N.Y.2d 96, 114–115 [1986] ). The victim's credited account of the incident was neither unreliable nor implausible and there was no reasonable view of the evidence upon which the factfinder could properly conclude that defendant's conduct was justified (see People v. Petty, 7 NY3d 277, 284 [2006] ).
However, the evidence was insufficient to support the conviction of attempted criminal mischief in the fourth degree (Penal Law §§ 110.00/145.00[1] ), upon the theory that defendant intentionally damaged the victim's jacket during the altercation. An intent to injure a person does not satisfy the mens rea requirement of intent to damage property simply because property is damaged in the course of the attack (see People v. Washington, 18 N.Y.2d 366 [1966] ). Since the evidence reveals only an intent directed toward the victim, the People failed to prove that defendant intended to damage the jacket (see People v. Bryant, 85 A.D.2d 575, 576 [1981] ). We modify the judgment accordingly.
The court properly exercised its discretion in denying defendant's request for a missing witness charge with respect to another cab driver present during the incident. There is no indication that the witness was under the People's control for purposes of a missing witness charge (see People v. Gonzalez, 68 N.Y.2d 424, 428–429 [1986] ; People v. Broadhead, 36 AD3d 423, 424 [2007], lv denied 8 NY3d 919 [2007] ; People v McLean, 17 AD3d 1150, 1151 [2005], lv denied 5 NY3d 791 [2005] ; People v. Archie, 167 A.D.2d 925, 926 [1990], lv denied 77 N.Y.2d 991 [1991] ). Furthermore, his testimony would have been cumulative of the other evidence. In any event, any error in failing to give a missing witness charge was harmless in the context of this nonjury trial and given the overwhelming evidence of guilt (see People v. Hall, 18 NY3d 122 [2011] ; People v. McFarlane, 189 A.D.2d 785, 785 [1993] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.