People v. Brown

• Decision Date: 09 October 1997
• Citation: 243 A.D.2d 749,662 N.Y.S.2d 934
• Parties: , 1997 N.Y. Slip Op. 8291 The PEOPLE of the State of New York, Respondent, v. Rodney B. BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 934

662 N.Y.S.2d 934

243 A.D.2d 749, 1997 N.Y. Slip Op. 8291

The PEOPLE of the State of New York, Respondent, v. Rodney B. BROWN, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 9, 1997.

John J. Carter, Plattsburgh, for appellant.

Penelope D. Clute, District Attorney, Plattsburgh, for respondent.

Before CARDONA, P.J., and MIKOLL, MERCURE, YESAWICH and CARPINELLO, JJ.

CARPINELLO, Justice.

Appeal from a judgment of the County Court of Clinton County (Lewis, J.), rendered March 13, 1995, upon a verdict convicting defendant of the crime of assault in the third degree.

Defendant was indicted for assault in the third degree, rape in the first degree, three counts of sodomy in the first degree, sexual abuse in the first degree and assault in the second degree as the result of a February 27, 1994 incident in which he is alleged to have slammed his neighbor (hereinafter the victim) onto a couch, jumped on top of her, raped her and forced her to commit oral sex on several occasions. During the struggle, it was alleged that defendant choked the victim to the point where her tongue hung out, she could not breathe and almost "passed out". Following a jury trial, defendant was found guilty of assault in the third degree. The jury deadlocked on the charge of rape in the first degree and defendant was acquitted of the remaining charges. ¹ Defendant now appeals, primarily arguing that the verdict was against the weight of the evidence, as well as inconsistent and repugnant.

With respect to his claim that the verdict is against the weight of the evidence, defendant attacks the sufficiency of the trial evidence as it related to the element of "physical injury" (Penal Law § 120.00[1] ), statutorily defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00[9] ). Upon the exercise of our factual review power, we find that the jury's verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The victim testified that defendant slammed her down onto her couch and choked her to the point where her tongue hung out of her mouth, she could not breathe and almost passed out. After the incident, the victim had visible marks on both sides of her neck. She also testified that her neck was sore and that she had a hard time swallowing. We note that the State Police investigator who took her statement and medical personnel who examined her confirmed the existence of marks on her neck. Under these circumstances, the jury could reasonably conclude that the victim suffered an injury sufficient to sustain the assault conviction (see, People v. Messier, 191 A.D.2d 819, 820-821, 594 N.Y.S.2d 453, lv. denied 81 N.Y.2d 1017, 600 N.Y.S.2d 205, 616 N.E.2d 862; cf., Matter of Philip A., 49 N.Y.2d 198, 201-202, 424 N.Y.S.2d 418, 400 N.E.2d 358; People v. Cheeks, 161 A.D.2d 657, 555 N.Y.S.2d 433).

Nor is there any substance to the claim that the verdict is inconsistent and repugnant. First, examination of this issue is foreclosed by the absence of a timely objection to the verdict by defendant. Failure to object to a verdict as inconsistent and repugnant before the jury is discharged--and thus at a time when it is still possible to resubmit the matter to the jury--renders such objection unpreserved for review (see, People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280; People v. Morgan, 219 A.D.2d 759, 631 N.Y.S.2d 449, lv. denied 87 N.Y.2d 849, 638 N.Y.S.2d 607, 661 N.E.2d 1389). Were we to nevertheless...