People v. Carte

• Decision Date: 05 December 2013
• Citation: 113 A.D.3d 191,976 N.Y.S.2d 594,2013 N.Y. Slip Op. 08158
• Parties: The PEOPLE of the State of New York, Respondent, v. Bryan J. CARTE, Appellant.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 191

976 N.Y.S.2d 594

2013 N.Y. Slip Op. 08158

The PEOPLE of the State of New York, Respondent,

v.Bryan J. CARTE, Appellant.

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

Dec. 5, 2013.

Girvin & Ferlazzo, PC, Albany (Christopher P. Langlois of counsel), for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.

Before: PETERS, P.J., ROSE, LAHTINEN and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered June 1, 2012, upon a verdict convicting defendant of the crimes of strangulation in the second degree and assault in the third degree (three counts).

In April 2011, State Troopers investigated a domestic disturbance in the Town of Peru, Clinton County and were told by the victim that defendant had choked her with one hand while shoving a piece of pizza in her face with the other. The troopers observed cuts, scratches, abrasions and red marks on the victim's face and neck, and other injuries that she said defendant had caused. Defendant was charged with one count of strangulation in the second degree and three counts of assault in the third degree. The victim and defendant later reconciled and, in the course of the jury trial, the victim partially recanted her claims, testifying that defendant had rubbed pizza in her face but had not choked or strangled her. Defendant was convicted of all charges and moved to set aside the verdict as to the strangulation charge pursuant to CPL 330.30. County Court denied the motion and sentenced defendant to an aggregate prison term of five years and two years of postrelease supervision. Defendant appeals, challenging the sufficiency and weight of the evidence supporting the strangulation conviction.¹

In 2010, the Legislature enacted several criminal statutes to address choking, strangling, and other forms of intentional interference with a victim's breathing or circulation ( see Penal Law art. 121; William C. Donnino, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 121.11, 2013 Pocket Part at 38). At the time of enactment, the Legislature stated that domestic abusers use strangulation as “a form of power and control [that] has a devastating psychological effect on victims and a potentially fatal outcome” (Senate Mem in Support, Bill Jacket, L. 2010, ch. 405, 2010 McKinney's Session Laws of N.Y. at 1977) and noted that strangulation can be challenging to prosecute as it may not cause obvious injuries, thus allowing the crime to go unpunished ( see Assembly Mem in Support, Bill Jacket, L. 2010, ch. 405). In the statutory scheme, the severity of the offense is measured by the degree of the consequent harm. A person commits the misdemeanor of criminal obstruction of breathing or blood circulation when, “with intent to impede the normal breathing or circulation of the blood of another person, he or she a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person,” with no resulting injury (Penal Law § 121.11). Such acts resulting in “stupor, loss of consciousness for any period of time, or any other physical injury or impairment” constitute the felony of strangulation in the second degree (Penal Law § 121.12); strangulation in the first degree involves “serious physical injury” (Penal Law § 121.13). Here, there was no claim that the victim suffered stupor or loss of consciousness and, in challenging his conviction for strangulation in the second degree, defendant argues that the evidence did not establish that he caused the victim to suffer physical injury or impairment by choking or strangling her. We disagree.

The Penal Law defines “physical injury” as an “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). To be substantial, pain must be “more than slight or trivial” but “need not ... be severe or intense” (People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007]; see People v. Stearns, 72 A.D.3d 1214, 1216–1217, 898 N.Y.S.2d 348 [2010], lv. denied15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ). Significant factors in determining whether pain is “substantial” include the objective nature of the injury, the victim's subjective experience and whether the victim sought medical treatment ( see People v. Chiddick, 8 N.Y.3d at 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039; People v. Dixon, 62 A.D.3d 1036, 1039, 878 N.Y.S.2d 495 [2009], lvs. denied 12 N.Y.3d 912, 884 N.Y.S.2d 693, 912 N.E.2d 1074 [2009], 12 N.Y.3d 914, 884 N.Y.S.2d 695, 912 N.E.2d 1076 [2009] ). Here, an investigating trooper stated that the victim was “complaining of pain loudly” upon his arrival. He and another trooper observed and photographed cuts, scratches and abrasions “all over” the victim's top lip and on her nose, as well as a red mark on the right side of her neck; these photographs were introduced into evidence at trial.

The victim was treated at a hospital emergency room. The medical records reveal that she stated that her boyfriend had choked her and pushed her in the face and throat, and had shoved pizza in her face. She reported that her breathing was painful, and that she was experiencing nausea and shortness of breath. Her treating physician testified that he observed abrasions and tenderness on both sides of her face and the right side of her neck, including signs of trauma on her neck that he testified “could be” claw marks resulting from strangulation; his diagram in the medical records depicts injuries on the victim's nose, around her mouth and on the lower right side of her neck. The victim was diagnosed with head trauma, facial contusions and a knee sprain. In the course of her treatment she described her pain as 9 on a scale of 10, and two separate opiate pain relievers were prescribed. Contrary to defendant's contention, the evidence does not support a finding that the victim's pain resulted primarily from her sprained knee or preexisting injuries; ² the treating physician described the injuries to the victim's face and neck as her “chief complaint.” Considering the nature of the injuries, the victim's reported pain and the treatment she received, the evidence was sufficient to submit the question of substantial pain to the jury ( see People v. Chiddick, 8 N.Y.3d at 446, 834 N.Y.S.2d 710, 866 N.E.2d 1039; People v. Jones, 79 A.D.3d 1244, 1245–1246, 912 N.Y.S.2d 746 [2010], lv. denied16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011]; People v. Stearns, 72 A.D.3d at 1217, 898 N.Y.S.2d 348).

We further find legally sufficient evidence that defendant caused the victim'sinjuries by applying pressure to her...