People v. Baber

• Citation: 123 N.Y.S.3d 222,182 A.D.3d 794
• Decision Date: 16 April 2020
• Docket Number: 110046
• Parties: The PEOPLE of the State of New York, Respondent, v. Scott BABER, Appellant.
• Court: New York Supreme Court Appellate Division

182 A.D.3d 794
123 N.Y.S.3d 222

The PEOPLE of the State of New York, Respondent,
v.
Scott BABER, Appellant.

110046

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

Calendar Date: February 13, 2020
Decided and Entered: April 16, 2020

123 N.Y.S.3d 225

Theresa M. Suozzi, Saratoga Springs, for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.

Before: Garry, P.J., Lynch, Mulvey, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

182 A.D.3d 794

Appeals (1) from a judgment of the County Court of Warren County (Hall Jr., J.), rendered January 5, 2018, upon a verdict convicting defendant of the crimes of strangulation in the second degree, assault in the second degree and assault in the third degree (two counts) and the violation of harassment in the second degree, and (2) from an order of said court, entered April 17, 2018, which set the amount of restitution owed by defendant.

In June 2017, defendant assaulted his girlfriend (hereinafter the victim) in the Town of Lake George, Warren County, and then assaulted her again several days later. He was charged with strangulation in the second degree, assault in the second degree, assault in the third degree (two counts) and harassment in the second degree. Following a jury trial, he was convicted as charged and sentenced to consecutive prison terms of seven years each upon the convictions for strangulation in the second degree and assault in the second degree, followed by three years of postrelease supervision, with lesser concurrent terms for the remaining convictions. After a hearing,

182 A.D.3d 795

County Court ordered defendant to pay restitution in the sum of approximately $20,000 for the victim's medical expenses. Defendant appeals from the judgment of conviction and from the restitution order.

Defendant asserts that his convictions for assault in the second degree and strangulation in the second degree are not supported by legally sufficient evidence and are against the weight of the evidence. Specifically, he argues that the victim's testimony was not consistent and credible enough to prove the elements of these convictions and, further, that the People failed to prove that he intended to cause injury to the victim, that he strangled her or that a telephone that he threw at her was a dangerous instrument (see Penal Law §§ 120.05[2] ; 121.12). Defendant's general motion to dismiss at trial was not

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"specifically directed" at any of the errors now raised upon appeal;¹ thus, his legal sufficiency claims are unpreserved for appellate review ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] [internal quotation marks and citation omitted]; see People v. Harris, 177 A.D.3d 1199, 1200, 115 N.Y.S.3d 477 [2019] ). Nevertheless, his assertion that his convictions are against the weight of the evidence requires us to determine whether each element of the crimes was proven beyond a reasonable doubt (see People v. McCollum, 176 A.D.3d 1402, 1403, 112 N.Y.S.3d 298 [2019] ; People v. Secor, 162 A.D.3d 1411, 1412, 80 N.Y.S.3d 511 [2018], lv denied 32 N.Y.3d 941, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] ).

At trial, the victim testified that she and defendant had previously lived in Florida and had a tempestuous romantic relationship. After a brief separation, the victim accepted defendant's invitation to reunite and relocate with him to Lake George. They moved there in early June 2017 and lived in a room at a resort motel. The victim testified that, on the evening of June 15, 2017, she and defendant drank alcohol at a gathering in the motel office with the owner, his wife and several other employees, and then returned to their room. They began to argue, and defendant became enraged, called the victim several profane names and then hit her in the crease of her eye and the corner of her mouth, causing her to bleed. The victim called the motel owner's wife, told her that defendant was "not in a right state of mind" and tried to leave the room. Before she could do so, defendant grabbed her and they fell to the floor, with the victim on her back and defendant on top of her, "slamming [the victim's] head against the floor." The victim managed to escape and left the room.

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A motel employee testified that he was working at this time in a tool room located directly below the room of the victim and defendant. He heard them arguing, heard defendant call the victim profane names, and heard the victim say, "[G]et off me. This hurts. Don't touch me. Get away from me." He testified that defendant's speech was slurred, that he sounded "very angry," and that the victim sounded "very worried and panicked." The employee heard pounding on the floor that he described as "something bigger [than feet] like bodies hitting the floor." There was a "huge thud" followed by silence for about 15 seconds. When the altercation resumed, the employee went to the office and told the owner's wife what he had heard. She directed him to go back to the room and give the victim a cell phone that she had left behind. The employee did so and encountered the victim outside the room, bleeding and "crying her eyes out." He gave the victim her phone, told her that he "[had] her back," and returned to the office to inform the motel owner's wife.

The victim testified that defendant had begun throwing her possessions out of the room. Believing that help was on the way, she picked up some of her belongings and took them inside, where she found that defendant was angrier than before. When she tried to leave, he intercepted her and they fell to the floor, with the victim face down and defendant on top of her. Defendant told the victim that he was going to kill her, put his hands around her neck and closed his fingers so tightly around her throat that the victim could not scream or breathe. She testified that she passed out and that, when she regained consciousness, defendant was "jerking" the hair on the

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back of her head and calling her name, sounding "scared ... that he had actually killed [her]." Defendant got off the victim and she got up, scrambled onto a bed, backed into a corner and kicked defendant away as he tried to approach her. Defendant then yanked the room telephone out of the wall and threw it at the victim, striking her in the left eye and causing blood to "pour[ ]" from her face. At the sight of the blood, defendant calmed down, tried to comfort the victim and allowed her to leave the room.

The victim went to the office and banged on the door until the motel owner's wife answered. The wife offered to call the police, but the victim declined. The wife gave the victim ice and found her another room to spend the night. Once in this room, the victim took cell phone pictures of her injuries; these were later admitted into evidence at trial. She testified that her face felt as if it was "on fire," that the vision in her left eye

182 A.D.3d 797

was impaired, and that her throat hurt when she swallowed or turned her head. Her injured eye was swollen and "blew up," becoming much more swollen when she blew her nose.²

The employee who had brought the phone to the victim testified that, later that night, he received a call from defendant requesting cigarettes and rolling papers, which the employee took to his room. The employee described the room as looking as if "a tornado went through there," with a lamp knocked over and blood on the bedding. The employee testified that the room telephone was missing, and that defendant told him that he had thrown a phone at the victim. The following morning, the victim left her room and encountered a different employee, who testified that the victim's face was "demolished" and "black and blue from her hairline down to probably her lip." This employee told the motel owner's wife that the victim needed medical assistance, and the wife arranged to have the victim taken to the hospital.

The victim testified that she did not tell hospital personnel the truth about the assault because she did not want police to go to the motel. Instead, she told them that she had been strangled and assaulted by a stranger, and she refused their offer to call police. A nurse and physician's assistant who treated the victim testified that she was complaining of a headache, neck pain, facial injuries and back pain, as well as vision difficulties. She was diagnosed with a fracture of the orbital wall of her left eye, a concussion and a thoracic sprain ; CAT scans revealing the eye injury were admitted into evidence. A physician's assistant testified that the victim's eye injury was consistent with suffering a blow to the eye, that her complaints of a hoarse voice, pain, swelling and neck tenderness were consistent with being choked, and that the location of a bruise on her neck was consistent with having been strangled to unconsciousness. A radiologist described the victim's eye injury as "serious" and stated that,...