People v. Bernazard

• Decision Date: 25 November 2020
• Docket Number: Ind. No. 1764/13,2016-05886
• Citation: 136 N.Y.S.3d 397,188 A.D.3d 1239
• Parties: The PEOPLE, etc., respondent, v. Jose BERNAZARD, appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1239

136 N.Y.S.3d 397

The PEOPLE, etc., respondent,

v.Jose BERNAZARD, appellant.

2016-05886

Ind. No. 1764/13

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

Argued—September 14, 2020

November 25, 2020

Paul Skip Laisure, New York, N.Y. (Ronald Zapata of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Michael J. Curtis of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered May 19, 2016, convicting him of attempted murder in the second degree, burglary in the first degree, attempted assault in the first degree, assault in the second degree, stalking in the first degree, aggravated criminal contempt (two counts), assault in the third degree (two counts), criminal obstruction of breathing or blood circulation, criminal trespass in the second degree, criminal mischief in the fourth degree, and criminal contempt in the second degree (three counts), upon a jury verdict, and sentencing him to a determinate term of imprisonment of 25 years to be followed by a period of postrelease supervision of 5 years on the conviction of attempted murder in the second degree, a determinate term of imprisonment of 25 years to be followed by a period of postrelease supervision of 5 years on the conviction of burglary in the first degree, a determinate term of imprisonment of 15 years to be followed by a period of postrelease supervision of 5 years on the conviction of attempted assault in the first degree, a determinate term of imprisonment of 7 years to be followed by a period of postrelease supervision of 3 years on the conviction of assault in the second degree, a determinate term of imprisonment of 7 years to be followed by a period of postrelease supervision of 3 years on the conviction of stalking in the first degree, indeterminate terms of imprisonment of 2? to 7 years on the convictions of aggravated criminal contempt (two counts), and definite terms of imprisonment of 1 year each on the convictions of assault in the third degree (two counts), criminal obstruction of breathing or blood circulation, criminal trespass in the second degree, criminal mischief in the fourth degree, and criminal contempt in the second degree (three counts), with the sentences imposed on the convictions of attempted murder in the second degree, burglary in the first degree, assault in the second degree, and aggravated criminal contempt under count 28 of the indictment to run consecutively with each other, and with all other sentences to run concurrently to each other and to those consecutive sentences.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, (1) by vacating the conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, (2) by reducing the sentence imposed on the conviction of burglary in the first degree from a determinate term of imprisonment of 25 years to be followed by a period of postrelease supervision of 5 years to a determinate term of imprisonment of 10 years to be followed by a period of postrelease supervision of 5 years, and (3) by directing that the consecutive sentence imposed on the conviction of aggravated criminal contempt under count 28 of the indictment shall instead run concurrently with the consecutive sentences imposed on the convictions of attempted murder in the second degree and burglary in the first degree; as so modified, the judgment is affirmed.

We agree with the defendant's contention that the evidence was legally insufficient to support his conviction of assault in the second degree. While the defendant failed to preserve this challenge, we reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ). Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), it was legally insufficient to establish, beyond a reasonable doubt, that the child complainant sustained a "physical injury" within the meaning of Penal Law § 10.00(9). Physical injury is defined as "impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ). The several witnesses described only a minor injury, stated variously that they saw "a redness" on the child's cheek, or a slight swelling under his eye and cheek, or a bruise to the right cheek, which was treated with a cold pack. Nor did the record support a finding that the child complainant experienced substantial pain because he experienced only tenderness for one to two hours after the incident. Accordingly, there was insufficient evidence that the child complainant suffered a "physical injury" within the meaning of Penal Law § 10.00(9) (see People v. Fews, 148 A.D.3d 1180, 1181–1182, 50 N.Y.S.3d 523 ; People v. Perry, 122 A.D.3d 775, 776, 996 N.Y.S.2d 195 ; People v. Boley, 106 A.D.3d 753, 753–754, 963 N.Y.S.2d 726 ; People v. Baksh, 43 A.D.3d 1072, 1073–1074, 845 N.Y.S.2d 343 ; People v. Richmond, 36 A.D.3d 721, 722, 826 N.Y.S.2d 748 ). We therefore vacate the defendant's conviction of assault in the second degree and the sentence imposed thereon and dismiss that count of the indictment.

Contrary to the defendant's contention, we agree with the Supreme Court's admission of the grand jury testimony of the adult complainant, as well as her June 17, 2013 recorded statement to an assistant district attorney, during the People's case. Prior testimony of a witness may be admitted as direct evidence at trial where the witness is unavailable, or is unwilling to testify, or is influenced to give false trial testimony, thereby being rendered effectively unavailable (see People v. Smart, 23 N.Y.3d 213, 220, 989 N.Y.S.2d 631, 12 N.E.3d 1061 ; People v. Geraci, 85 N.Y.2d 359, 366, 625 N.Y.S.2d 469, 649 N.E.2d 817 ). The evidence must establish that the witness's unavailability or unwillingness was procured by intentional misconduct on the part of the defendant which was aimed at preventing the witness from testifying truthfully (see People v. Smart, 23 N.Y.3d at 220, 989 N.Y.S.2d 631, 12 N.E.3d 1061 ; People v. Geraci, 85 N.Y.2d at 366, 625 N.Y.S.2d 469, 649 N.E.2d 817 ). The People...