People v. Bush

• Decision Date: 25 June 2020
• Docket Number: 109124
• Citation: 126 N.Y.S.3d 570,184 A.D.3d 1003
• Parties: The PEOPLE of the State of New York, Respondent, v. Jerry W. BUSH, Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 1003
126 N.Y.S.3d 570

The PEOPLE of the State of New York, Respondent,
v.
Jerry W. BUSH, Appellant.

109124

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

Decided and Entered: June 25, 2020
Calendar Date: May 21, 2020

126 N.Y.S.3d 573

Craig S. Leeds, Albany, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Aarons, J.

184 A.D.3d 1003

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered November 28, 2016,

184 A.D.3d 1004

upon a verdict convicting defendant of the crimes of endangering the welfare of an incompetent or physically disabled person in the first degree, assault in the second degree and official misconduct.

Defendant was employed by the Office for People with Developmental Disabilities and worked at a residential facility in Franklin County. Defendant was charged in a multicount indictment stemming from an incident where he and other staff members struck and hit a facility resident (hereinafter the victim) causing him injuries. Defendant and some of the staff members were tried together in a joint jury trial and were represented by the same counsel. Following the trial, defendant was acquitted on the count of assault in the third degree, but was convicted of endangering the welfare of an incompetent or physically disabled person in the first degree, assault in the second degree and official misconduct. Defendant's subsequent

126 N.Y.S.3d 574

CPL 330.30 motion to set aside the verdict was denied. County Court thereafter sentenced defendant to a term of imprisonment. Defendant appeals. We affirm.

Defendant argues that the evidence was not legally sufficient to support the verdict. "A verdict is legally insufficient when, viewing the record in the light most favorable to the prosecution, there is no valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" ( People v. Arhin, 165 A.D.3d 1487, 1488, 85 N.Y.S.3d 631 [2018] [internal quotation marks and citations omitted]; see People v. Novak, 148 A.D.3d 1352, 1354, 50 N.Y.S.3d 577 [2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). Contrary to defendant's assertion that the People failed to prove that the victim was physically disabled or suffered from a mental disease or defect as required for the crime of endangering the welfare of an incompetent or physically disabled person in the first degree (see Penal Law § 260.25 ), the record discloses that, when the victim was a child, he fell from a train engine and, as a consequence, was in a coma and suffered a traumatic brain injury. The victim testified that his education level was that of a fifth grader and that he has engaged in self-injurious behavior in the past, including hitting his head against a wall. The victim's grandmother, who was the victim's legal guardian, stated that the victim first went to a group home when he was 16 or 17 years old. The victim has resided in the current facility for over three years, which is a place for developmentally disabled people who have backgrounds of mental handicaps. The duties of some aides who worked at the facility included helping residents progress through their programs and assisting

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them with their daily tasks, such as bathing, brushing their teeth, eating properly or making their bed. In view of this evidence, defendant's argument is without merit.

Defendant also contends that, with respect to the charge of assault in the second degree, the evidence was not legally sufficient to establish that he caused the victim's injuries (see Penal Law § 120.05[6] ) and that, with respect to the charge of official misconduct, the evidence did not show that he failed to accomplish any duty (see Penal Law § 195.00[2] ). We disagree. The victim testified that, after becoming angry and knocking over his food, he was initially restrained by staff members. Defendant¹ and the codefendants also responded to the scene, replaced the staff members and took the victim to a "time-out room." A former employee who was working at the time of the incident testified that he was able to observe the victim in the time-out room. He saw a struggle ensue between the victim and defendant and the codefendants, with defendant holding the victim's left arm while one codefendant had the victim in a choke hold. The victim stated that defendant and the codefendants punched and kicked him in the shoulder, back, face and genital area. He specifically testified that he believed that defendant hit him in the face. The former employee stated that the victim was gagging and that his face was turning red. The former employee also stated that he heard one codefendant say after the struggle, "I'm glad we loosened that f* * *er up." The victim was taken to the emergency room and he

126 N.Y.S.3d 575

stated that he experienced pain in his jaw following this incident. The grandmother visited the victim the day after the incident and she observed that his face was black and blue and swollen on the left side. Other witnesses, including a nurse, likewise testified that they observed the victim with swelling and bruises.²

Viewing the evidence in the light most favorable to the People, we are satisfied that the evidence was legally sufficient to support the charges of assault in the second degree and official misconduct (see generally People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ). The record contains evidence that defendant was a state employee whose duties included supervising the victim and helping him with his daily activities. Furthermore, the victim suffered swelling and bruises after being struck by defendant

184 A.D.3d 1006

and the codefendants. We also note that it was not necessary for the People to prove that defendant himself caused the victim's injuries. Rather, for assault in the second degree as charged in the indictment, the People had to show that defendant "or another participant if there be any" caused the injuries while in the course or in the furtherance of committing another felony ( Penal Law § 120.05[6] ).

As to defendant's argument that the verdict was against the weight of the evidence, a contrary result would not have been unreasonable in view of the proof submitted by defendant that he did not punch or strike the victim (see People v. Colon–Velazquez, 172 A.D.3d 1621, 1622, 100 N.Y.S.3d 434 [2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 745, 133 N.E.3d 450 [2019] ). Nevertheless, the jury was free to reject this proof and credit the testimony given by the People's witnesses (see People v. Brinkley, 174 A.D.3d 1159, 1162, 106 N.Y.S.3d 210 [2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 646, 137 N.E.3d 16 [2019] ; People v. Mamadou, 172 A.D.3d 1524, 1525, 100 N.Y.S.3d 423 [2019], lv denied 33 N.Y.3d 1106, 106 N.Y.S.3d 670, 130 N.E.3d 1280 [2019] ). To the extent that defendant contends that the victim was unworthy of belief due to his cognitive limitations, the jury was in the best position to observe and assess the victim's credibility (see People v. Cubero, 160 A.D.3d 1298, 1300–1301, 75 N.Y.S.3d 658 [2018], affd 34 N.Y.3d 976, 113 N.Y.S.3d 1, 136 N.E.3d 747 [2019] ). Viewing the evidence in a neutral light and weighing the relative probative force of conflicting testimony and the relative strength of conflicting inferences that can be drawn from the trial testimony, as well as taking into account that we defer to the jury's credibility determinations (see People v. Sloley, 179 A.D.3d 1308, 1310–1311, 117 N.Y.S.3d 373 [2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 38, 148 N.E.3d 502 [Apr. 23, 2020] ), we cannot say that the verdict was against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

Defendant argues that the victim was incompetent due to a mental defect and, therefore, County Court erred in permitting him to testify. A witness older than nine years old may give testimony under oath unless the court is satisfied that this witness cannot comprehend the nature of an oath due to a mental disease or defect (see CPL 60.20[2] ). "The resolution of the issue of witness competency is exclusively the responsibility of the trial

126 N.Y.S.3d 576

court, subject to limited appellate review" ( People v. Miller, 295 A.D.2d 746, 748, 746 N.Y.S.2d 50 [2002] [internal quotation marks and citation omitted] ). The court's extensive questioning of the victim and the responses thereto demonstrate that the victim knew the difference between telling the truth and a lie, understood the significance of an oath to tell the truth and appreciated the consequences if he lied under oath. In the absence of any evidence indicating that the victim failed...