People v. Alexander

• Decision Date: 16 April 2015
• Docket Number: 106150.
• Citation: 127 A.D.3d 1429,8 N.Y.S.3d 674,2015 N.Y. Slip Op. 03205
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael ALEXANDER, Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1429
8 N.Y.S.3d 674
2015 N.Y. Slip Op. 03205

The PEOPLE of the State of New York, Respondent
v.
Michael ALEXANDER, Appellant.

106150.

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

April 16, 2015.

8 N.Y.S.3d 675

Matthew C. Hug, Troy, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Brandon P. Rathbun of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY and LYNCH, JJ.

Opinion

GARRY, J.

127 A.D.3d 1429

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered May 6, 2013, upon a verdict convicting defendant of the crime of attempted assault in the second degree.

In April 2012, defendant, an inmate in a correctional facility, engaged in a fight with another inmate (hereinafter the victim). Defendant was charged in a four-count indictment and

127 A.D.3d 1430

convicted by a jury of attempted assault in the second degree. County Court sentenced him as a second felony offender to a prison term of 2 to 4 years. Defendant appeals.

Initially, defendant contends that he was deprived of due process by a delay of approximately seven months between the incident and the issuance of the indictment. An unreasonable and unjustified indictment delay violates a defendant's due process rights and may result in dismissal of the indictment, even when no prejudice results (see People v. Lesiuk, 81 N.Y.2d 485, 490, 600 N.Y.S.2d 931, 617 N.E.2d 1047 [1993] ; People v. Morris, 25 A.D.3d 915, 916, 807 N.Y.S.2d 228 [2006], lvs. denied 6 N.Y.3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980 [2006], 6 N.Y.3d 853, 816 N.Y.S.2d 759, 849 N.E.2d 982 [2006] ). The relevant factors in determining whether a delay was unreasonable are the same as those applied to speedy trial claims, including “the extent of the delay, reason for the delay, nature of the underlying

8 N.Y.S.3d 676

charges, any extended pretrial incarceration and any indications of prejudice or impairment to the defense attributable to the delay” (People v. Garcia, 46 A.D.3d 1120, 1120–1121, 853 N.Y.S.2d 174 [2007], lv. denied 10 N.Y.3d 863, 860 N.Y.S.2d 489, 890 N.E.2d 252 [2008] ; accord People v. Ruise, 86 A.D.3d 722, 722–723, 926 N.Y.S.2d 754 [2011], lv. denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ; see People v. Vernace, 96 N.Y.2d 886, 887, 730 N.Y.S.2d 778, 756 N.E.2d 66 [2001] ). Here, the People offered no explanation for the delay. However, the seven-month period between the incident and the indictment was not egregiously long (see People v. Staton, 297 A.D.2d 876, 876–877, 747 N.Y.S.2d 603 [2002], lv. denied 99 N.Y.2d 565, 754 N.Y.S.2d 217, 784 N.E.2d 90 [2002] [six months and 21 days]; People v. Diaz, 277 A.D.2d 723, 724, 715 N.Y.S.2d 786 [2000], lv. denied 96 N.Y.2d 758, 725 N.Y.S.2d 284, 748 N.E.2d 1080 [2001] [six months]; People v. Allah, 264 A.D.2d 902, 902–903, 696 N.Y.S.2d 92 [1999] [nine months]; People v. Cooper, 258 A.D.2d 815, 816, 686 N.Y.S.2d 172 [1999], lv. denied 93 N.Y.2d 1016, 697 N.Y.S.2d 575, 719 N.E.2d 936 [1999] [seven months] ). The charges against defendant were serious and, as he was already incarcerated, “the delay did not impose a further burden upon his liberty” (People v. McCormick, 17 A.D.3d 785, 786, 792 N.Y.S.2d 724 [2005] ). As for prejudice, nothing in the record substantiates defendant's assertion that the delay prevented him from determining the identities of other inmates who might have witnessed the incident but could have been released or transferred in the interim (compare People v. Johnson, 38 N.Y.2d 271, 277, 379 N.Y.S.2d 735, 342 N.E.2d 525 [1975] ). Accordingly, we find that defendant was not deprived of his due process rights on this ground.

Defendant next contends that his conviction was not supported by legally sufficient evidence and was against the weight of the evidence. To convict defendant of attempted assault in the second degree, the People were required to prove that he intended to cause physical injury to another person and “engage[d] in conduct which tend[ed] to effect the commission of such crime” (Penal Law § 110.00 ; see Penal Law § 120.05[7] ;

127 A.D.3d 1431

People v. Gannon, 301 A.D.2d 873, 873, 754 N.Y.S.2d 107 [2003] ).¹ The testimony established that several correction officers saw two inmates fighting with each other, throwing punches and struggling back and forth. One of the officers testified that he saw a weapon that resembled an ice pick in the right hand of one of the inmates, which that inmate wielded about four times in a downward striking motion toward the other participant; the other participant was making slashing motions from left to right. The officer later identified defendant as the inmate he had seen with the ice pick weapon. Officers interrupted the fight, ordered both inmates to lie on the ground and placed them in restraints. When defendant was assisted to his feet, a sergeant observed a weapon resembling an ice pick on the floor where defendant had been lying. A weapon with a razor blade was found under the victim. Defendant suffered several straight-edged lacerations that were consistent with the razor blade, while the victim sustained multiple puncture wounds and scratches to his head and upper torso that were consistent with the weapon that looked like an ice pick.

Defendant offered a different account, testifying that he was suddenly attacked by an inmate wielding an ice pick. While

8 N.Y.S.3d 677

defendant attempted to fend off this attack, he felt himself being cut by a different weapon employed by another individual. He was unable to identify either of these attackers, and the inmate with the ice pick ran away when correction officers approached. Defendant turned around and began fighting with the first person he found behind him, who proved to be the victim. Defendant explained, “I [was] already upset. So whoever was behind me [was] getting it.” He stated that he did not possess a weapon, was left-handed and was not ambidextrous. We find that the evidence, viewed in the light most favorable to the People, is legally sufficient to establish “that defendant intended to cause physical injury to another inmate and engaged in conduct tending to effect commission of that crime” (People v. Gannon, 301 A.D.2d at 873, 754 N.Y.S.2d 107 ; see People v. Hawkins, 290 A.D.2d 812, 813, 736 N.Y.S.2d 775 [2002], affd. 99 N.Y.2d 592, 757 N.Y.S.2d 810, 787 N.E.2d 1156 [2003] ). Further, although another verdict would not have been unreasonable, viewing the evidence in a neutral light and deferring to the jury's credibility determinations, we are satisfied that the verdict was not against the weight of the evidence (see People v. Chasey, 5 A.D.3d 815, 816–817, 772 N.Y.S.2d 629 [2004], lv. denied 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468 [2004] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

127 A.D.3d 1432

We find no merit in defendant's contention that his state and...