People v. Andrews

• Decision Date: 04 November 2010
• Citation: 78 A.D.3d 1229,911 N.Y.S.2d 221
• Parties: The PEOPLE of the State of New York, Respondent, v. Rex ANDREWS Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 221
78 A.D.3d 1229

The PEOPLE of the State of New York, Respondent,
v.
Rex ANDREWS Jr., Appellant.

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

Nov. 4, 2010.

911 N.Y.S.2d 223

Matthew C. Hug, Troy, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), for respondent.

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

GARRY, J.

78 A.D.3d 1229

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered June 23, 2009, upon a verdict convicting defendant of the crimes of attempted assault in the first degree, criminal possession of a weapon in the third degree and assault in the third degree.

Defendant was indicted on four counts following an altercation

78 A.D.3d 1230

that occurred in September 2008 on the victim's property in the City of Elmira, Chemung County. The victim, who had previously noticed that a garage door upon his property had been tampered with and items had been stored inside, found defendant in the garage. After an initial verbal confrontation, defendant allegedly attacked the victim with a hammer,¹ they struggled, and the victim suffered a broken ankle. Defendant fled and was apprehended nearby minutes later.

After a jury trial, defendant was acquitted of attempted murder in the second degree, but convicted of attempted assault in the first degree, assault in the third degree as a lesser included offense of assault in the second degree, and criminal possession of a weapon in the third degree. Before sentencing, defendant's challenge to his status as a second violent felony offender was rejected.² County Court (Hayden, J.) thereafter sentenced defendant as a second violent felony offender to an aggregate prison term of 15 years and five years of postrelease supervision. Defendant appeals.

Defendant failed to preserve his challenges to the legal sufficiency of his convictions by renewing his unsuccessful motion to dismiss the charges at the close of all proof, after presenting evidence ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006]; People v. Vargas, 72 A.D.3d 1114, 1116, 898 N.Y.S.2d 323 [2010], lv. denied

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15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ). However, defendant also challenges the weight of the evidence supporting his convictions ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), and our review in that regard necessarily includes the sufficiency of the evidence as to the elements of the charged crimes ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; People v. Morrison, 71 A.D.3d 1228, 1229, 896 N.Y.S.2d 253 [2010], lv. denied 15 N.Y.3d 747, 754, 906 N.Y.S.2d 820, 827, 933 N.E.2d 219, 226 [2010]; People v. Vargas, 72 A.D.3d at 1116, 898 N.Y.S.2d 323).

First, with regard to the conviction for attempted assault in the first degree, we are unpersuaded by defendant's contention that the evidence did not demonstrate that he intended to cause serious physical injury or that he came dangerously close to doing so ( see Penal Law §§ 110.00, 120.10[1] ). The victim testified that defendant warned that he should not have dialed 911, and stated that he had "something for [the victim]" before taking the hammer out of his backpack. According to the victim, defendant repeatedly swung the hammer at his head in violent, vertical strokes that the victim was able to avoid only by deflecting

78 A.D.3d 1231

the blows with a broomstick. The victim's 13-year-old son was present and corroborated this account. Thus, despite defendant's testimony that the hammer merely fell from his backpack and that he did not strike or try to strike the victim with it, there was ample evidence from which the jury could justifiably conclude that he came "dangerously near" to causing serious physical injury to the victim ( People v. Bonney, 69 A.D.3d 1116, 1117, 894 N.Y.S.2d 192 [2010], lv. denied 14 N.Y.3d 838, 901 N.Y.S.2d 145, 927 N.E.2d 566 [2010] [internal quotation marks and citations omitted] ). Moreover, defendant's intent to cause such injury was readily inferred from the surrounding circumstances and his conduct and statements ( see People v. Malcolm, 74 A.D.3d 1483, 1485, 902 N.Y.S.2d 264 [2010]; People v. Carter, 74 A.D.3d 1375, 1377, 903 N.Y.S.2d 172 [2010], lvs. denied 15 N.Y.3d 772, 907 N.Y.S.2d 460, 461, 933 N.E.2d 1053, 1054 [2010] ).

With regard to his conviction for assault in the third degree, defendant contends that there was no evidence that the hammer blows to the victim's head caused "impairment of physical condition or substantial pain" (Penal Law § 10.00[9] ) or that he intended to fracture the victim's ankle. However, the weight of the credible evidence establishes that the fracture occurred when the victim fell while attempting to repel defendant's hammer attack. Thus, the fracture was a direct result of defendant's conduct, and the jury justifiably concluded that...