People v. Brabham

• Decision Date: 05 March 2015
• Docket Number: 105467
• Citation: 4 N.Y.S.3d 386,126 A.D.3d 1040,2015 N.Y. Slip Op. 01833
• Parties: The PEOPLE of the State of New York, Respondent, v. Kenneth M. BRABHAM, Also Known as Skeet, Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1040

4 N.Y.S.3d 386

2015 N.Y. Slip Op. 01833

The PEOPLE of the State of New York, Respondent

v.Kenneth M. BRABHAM, Also Known as Skeet, Appellant.

105467

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

March 5, 2015.

John R. Trice, Elmira, for appellant, and appellant pro se.

Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, DEVINE and CLARK, JJ.

Opinion

GARRY, J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered September 12, 2012, upon a verdict convicting defendant of the crimes of burglary in the first degree, attempted assault in the first degree and assault in the second degree.

Defendant and several other men allegedly entered the victim's apartment without permission and assaulted him. Defendant was indicted for burglary in the first degree, attempted assault in the first degree and assault in the second degree. He was convicted as charged by a jury and sentenced to an aggregate prison term of 15 years followed by five years of postrelease supervision. Defendant appeals.

Defendant contends that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence, asserting that the witness testimony against him was not credible. Defendant moved to dismiss the charges on this ground at the close of the People's case, but he did not renew the motion following the close of all proof. Although his legal sufficiency claim is therefore unpreserved (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; People v. Santiago, 118 A.D.3d 1163, 1164, 987 N.Y.S.2d 692 [2014], lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ), defendant's claim that the verdict was against the weight of the evidence requires this Court to examine the sufficiency of the evidence of each element of the crimes (see People v. Rowe, 105 A.D.3d 1088, 1090 n. 2, 962 N.Y.S.2d 735 [2013], lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 [2013] ; People v. Mitchell, 94 A.D.3d 1252, 1253 n., 942 N.Y.S.2d 657 [2012], lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ).

The victim testified that he and defendant's paramour were in his apartment when several men burst through the door, including defendant, who was holding a gun. Defendant and the other men beat the victim with various objects, including a wooden rod or staff, an end table, a propane tank and a hard object that the victim believed to be the butt of defendant's gun. The victim testified that he crouched face down on his bed during most of the assault, trying to protect himself and his dog, but looked up once to see defendant—whom he had previously met several times—hitting him in the head with the end table. Another assailant hit him repeatedly with the rod, fracturing one of his fingers. The rod and the end table, both of which were broken during the attack, were admitted into evidence at trial. The victim testified that the assault continued for about 20 minutes until one of the men said, “[H]e's leaking good, let's get out of here,” at which point the men left the apartment, taking the paramour with them. When the victim left the apartment in search of assistance, he saw four men “dragging” the paramour away. He later identified defendant from a photograph, but could not identify the other assailants.

In addition to the broken finger, the victim sustained multiple contusions and a laceration on his head, additional contusions on his face, back, arms and hands, shoulder injuries and a large swollen bruise on his arm. He received medical treatment that included stitches for the head wound, a sling for the injured arm and physical therapy for the shoulder. He did not regain full use of his arm for several months and, at the time of trial, was still unable to move the broken finger.

The victim and the paramour both testified that defendant had previously warned them that the paramour was not allowed to enter the victim's apartment; according to the victim, defendant said during the assault, “[I] told you not to let [the paramour] come in here.” The paramour was reluctant to testify because of her relationship with defendant, and did so only after she was incarcerated pursuant to a warrant for her arrest as a material and necessary witness. She confirmed the victim's testimony in part, stating that she was present when defendant and three other men entered the apartment without permission. She testified that defendant had a gun, one of the other men had a “stick” and the other three men beat the victim, but she stated that defendant removed her from the apartment when the assault began and that she did not see him strike the victim.

Defendant challenges the credibility of the victim and the paramour, pointing to such inconsistencies in their statements as the conflict between the victim's claim that defendant participated in the assault and the paramour's claim that he did not do so. Defendant argues that the victim was unworthy of belief because of his extensive criminal record and longstanding history of drug abuse, and he challenges the credibility of the paramour based upon her history of prostitution and drug abuse, prior convictions for these activities and testimony that she had previously traded sex for drugs with the victim. As defendant contends, the victim's initial statements to police did not include his later claims that defendant had a gun and that the victim was struck with a propane tank. Moreover, the victim acknowledged that he and the paramour had smoked crack together in his apartment on the night before the assault, that he continued to abuse drugs thereafter, and that he had last smoked crack only a few days before the trial. However, he testified that he was not under the influence of drugs when the assault occurred nor at trial, and a police officer testified that the victim was able to communicate clearly after the assault.

There were other inconsistencies in the victim's testimony, such as his testimony at one point that three men entered the apartment and at another point that the number was between two and four. However, we reject defendant's argument that these issues—all of which were thoroughly explored on cross-examination—rendered the testimony unworthy of belief. The testimony was not contradicted by any other compelling evidence and cannot be considered incredible as a matter of law (see People v. Cridelle, 112 A.D.3d 1141, 1143, 976 N.Y.S.2d 713 [2013] ; People v. Moyer, 75 A.D.3d 1004, 1006, 906 N.Y.S.2d 175 [2010] ). Instead, the conflicts and inconsistencies in the testimony created “classic credibility issue[s] for the jury to resolve” (People v. Mitchell, 57 A.D.3d 1308, 1309, 871 N.Y.S.2d 445 [2008] [internal quotation marks and citation omitted]; accord People v. McCray, 102 A.D.3d 1000, 1004, 958 N.Y.S.2d 511 [2013], affd. 23 N.Y.2d 193, 989 N.Y.S.2d 649, 12 N.E.3d 1079 [2014] ). Viewing the evidence in a neutral light and according deference to the jury's credibility assessments, the verdict is supported by the weight of the evidence as to all of the charged crimes (see People v. Mateo, 101 A.D.3d 1458, 1459–1460, 956 N.Y.S.2d 699 [2012], lv. denied 21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [2013] ; People v. Dove, 89 A.D.3d 1153, 1153–1154, 931 N.Y.S.2d 921 [2011], lv. denied 18 N.Y.3d 957, 944 N.Y.S.2d 485, 967 N.E.2d 710 [2012] ; People v. Elliot, 299 A.D.2d 731, 733, 751 N.Y.S.2d 331 [2002] ).

Defendant's representation at trial did not constitute the ineffective assistance of counsel. As he contends, his counsel's arguments in the trial motion to dismiss and in summation that the victim did not sustain serious physical injury were misguided, as no such showing is required to prove attempted assault in the first degree (see People v. Daniels, 97 A.D.3d 845, 847, 948 N.Y.S.2d 431 [2012], lv. denied 20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ; People v. Gray, 30 A.D.3d 771, 773, 816 N.Y.S.2d 609 [2006], lv. denied 7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006] ). Moreover, defense counsel was unsuccessful in using a defense witness to impeach defendant's testimony as to the number of assailants because he had not established the necessary foundation, although he did impeach the...