People v. Bonney

• Decision Date: 21 January 2010
• Docket Number: 102127
• Citation: 2010 NY Slip Op 407,894 N.Y.S.2d 192,69 A.D.3d 1116
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DONNELL BONNEY, Appellant.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 1116 894 N.Y.S.2d 192 2010 NY Slip Op 407 THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DONNELL BONNEY, Appellant. 102127 Appellate Division of the Supreme Court of New York, Third Department. Decided January 21, 2010.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 31, 2008, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, burglary in the first degree, assault in the second degree, unlawful imprisonment in the second degree and aggravated harassment in the second degree.

KAVANAGH, J.

Defendant and the victim have been involved in a long-term relationship that has been characterized by numerous assaults and other acts of violence. On September 21, 2007, the victim, upon returning home after spending an evening with friends, received a telephone call from defendant in which he told her

69 A.D.3d 1117

that she "better watch [her]self." Shortly after that phone call, defendant, apparently enraged at the prospect that another adult male might be in the house, forced his way into the victim's home, grabbed her by the hair, put a knife to her throat and repeatedly hit her head against the floor and kitchen countertop. He dragged the victim throughout the premises, apparently in search of her male companion, and choked her until she became momentarily unconscious. At one point during the encounter, defendant grabbed a photograph of one of the victim's children and told her that she "was never going to see [her] kids again." The attack continued unabated until the parties' 10-year-old son came into the home and saw defendant on top of the victim strangling her. Defendant, upon seeing his son, spit on the victim and fled. After 911 was called, the victim was taken to the hospital where bruises and abrasions were noted about her head and face and she was found to have sustained a fracture to her thyroid cartilage. She also reported having difficulty with her vision as well as her hearing and claimed to have sustained some loss of memory.

Defendant was subsequently charged by indictment with, among other things, attempted murder in the second degree, burglary in the first degree, assault in the second degree, unlawful imprisonment in the second degree and aggravated harassment in the second degree.^* At trial he was convicted of these five charges and sentenced, as a second felony offender, to an aggregate prison term of 24 years, plus five years of postrelease supervision. Defendant now appeals.

Initially, defendant contends that his conviction for attempted murder is not supported by the weight of the credible evidence because it was never established at trial that, at any time during the encounter, he intended to kill the victim as opposed to simply intending to assault her. While conceding that he forced his way into the victim's home, defendant argues that his actions that evening did not amount to conduct that came "dangerously near" to causing the victim's death and did not support the jury's verdict convicting him of attempted murder (People v Acosta, 80 NY2d 665, 670 [1993]; see Penal Law §§ 110.00, 125.25 [1]; People v Naradzay, 11 NY3d 460, 466 [2008]). Specifically, defendant claims that the entire encounter was prompted by his concern for the victim's safety and that he only became angry and agitated once inside the premises

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because he believed that the victim had been entertaining a male visitor. He admits grabbing the victim by her hair, assaulting her and placing his hands about her neck, but denies ever harboring an intent to kill her. He also argues that the victim's prompt discharge from the hospital on the evening of the attack is evidence that she was not...