People v. Agron

• Decision Date: 02 May 2013
• Citation: 964 N.Y.S.2d 694,2013 N.Y. Slip Op. 03128,106 A.D.3d 1126
• Parties: The PEOPLE of the State of New York, Respondent, v. James A. AGRON, Appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1126
964 N.Y.S.2d 694
2013 N.Y. Slip Op. 03128

The PEOPLE of the State of New York, Respondent,
v.
James A. AGRON, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 2, 2013.

[964 N.Y.S.2d 695]

John R. Trice, Elmira, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

[106 A.D.3d 1126]Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered June 6, 2011, upon a verdict convicting defendant of the crimes of assault in the third degree, attempted assault in the second degree, criminal mischief in the third degree, menacing in the second degree, endangering the welfare of a child (two counts) and criminal mischief in the fourth degree.

On the evening of February 11, 2010, the victim was fixing dinner in the apartment that she shared with defendant, their eight-month-old son and her 5 1/2-year-old daughter. When defendant awoke from his nap, he discovered that the victim had moved his crack pipe and demanded to know its whereabouts. The victim “played ... dumb,” at which point defendant became infuriated and smashed her cell phone. The victim then went in search of defendant's cell phone in order to call the police. Defendant responded by snapping the cell phone in half and, while the victim was holding their infant son in her arms, [106 A.D.3d 1127]proceeded to repeatedly strike the victim in the head and face with his fist. ¹

As the victim attempted to shield the child, she saw defendant lean over and grab what she described as a long, black rod-shaped object.² When defendant moved toward her, raised the object and threatened to kill her, the victim placed the child on the bed, at which point she was struck on the left side of her face “[h]ard enough to make [her] see stars and black out.” The victim came to on the floor “covered in blood,” at which point defendant either “kicked [her] a few times” or struck her on the side of her body with “something blunt.” After again threatening the victim, defendant packed his belongings and left the apartment via the front door, which the victim locked behind him. As the victim was trying to gather the children and seek assistance from a neighbor, she heard “loud pounding, knocking on the back door” of the apartment. When she went to investigate, the victim could hear defendant screaming and observed that the bottom panel of the door—previously undamaged—was now “punched out and broken.” At this point, the victim fled the apartment with her children and summoned help from passersby.

As a result of this incident, defendant was charged in a nine-count indictment with various crimes and, following a mistrial and a second jury trial, was convicted of assault in the third degree, attempted assault in the second degree, criminal mischief in the third degree, menacing in the second degree, endangering the welfare of a child (two counts) and criminal mischief in the fourth degree. Defendant thereafter was sentenced as a second felony offender to an aggregate prison term of 4 to 8 years. Defendant now appeals, contending that his convictions of attempted assault in the second degree and criminal mischief in the third degree are not supported by legally...