People v. Conway

• Decision Date: 09 January 2020
• Docket Number: 109839
• Parties: The PEOPLE of the State of New York, Respondent, v. Devin CONWAY, Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1218
116 N.Y.S.3d 118

The PEOPLE of the State of New York, Respondent,
v.
Devin CONWAY, Appellant.

109839

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

Calendar Date: November 18, 2019
Decided and Entered: January 9, 2020

Mark Schneider, Plattsburgh, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Garry, P.J., Lynch, Mulvey, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

179 A.D.3d 1218

Defendant was charged by indictment with various crimes stemming from allegations that he had attempted to run the victim over with a vehicle. Following a jury trial, defendant was convicted of attempted assault in the first degree, criminal possession of a weapon in the third degree, tampering with a witness in the fourth degree and criminal solicitation in the fourth degree. County Court thereafter sentenced defendant, as a second felony offender, to a prison term of eight years, followed by five years of postrelease supervision, on his conviction of attempted assault in the first degree and to lesser concurrent prison terms on the remaining convictions. Defendant appeals.

The conviction for attempted assault in the first degree is not against the weight of the evidence. Although defendant concedes that the evidence would permit a jury to infer that he intended to assault the victim, he argues that the evidence also supports the inference that he intended to only scare the victim. "When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Gill, 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] [internal quotation marks and citations omitted] ).

179 A.D.3d 1219

A conviction for attempted assault in the first degree requires proof that the defendant acted with the intent to cause serious physical injury to another person (see Penal Law §§ 110.00, 120.10[1] ). "Criminal intent may be inferred from the totality of the circumstances ... [or] from the natural and probable consequences of [the] defendant's conduct" ( People v. Coleman, 151 A.D.3d 1385, 1386, 58 N.Y.S.3d 631 [2017] [internal quotation marks, brackets and citations omitted], lv denied 29 N.Y.3d 1125, 64 N.Y.S.3d 675, 86 N.E.3d 567 [2017] ).

The victim testified that he was walking his dog in the rear parking lot of a bingo hall when a blue SUV operated by defendant entered the parking lot, drove past him, made a U-turn and then accelerated

116 N.Y.S.3d 121

in his direction. The victim also testified that, when he realized that he was directly in the path of the accelerating SUV, he moved out of the way as quickly as possible and, had he not done so, he would have been "finished." He emphasized that the SUV was aimed directly at him and never braked or swerved to avoid him. The victim's testimony was corroborated by a video recording that captured part of the incident. In light of the uncontradicted evidence that defendant aimed a vehicle at the victim and took no evasive action, a different verdict would have been unreasonable on the charge of attempted assault in the first degree. Accordingly, we reject outright defendant's claim that this conviction was against the weight of the evidence (see People v. Youngs, 175 A.D.3d 1604, 1609, 110 N.Y.S.3d 73 [2019] ; People v. Henry, 173 A.D.3d 1470, 1478, 103 N.Y.S.3d 656 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 699, 133 N.E.3d 399 [2019] ).

Defendant further...