People v. Desius

• Decision Date: 13 November 2020
• Docket Number: KA 18-02097,680.5
• Citation: 135 N.Y.S.3d 214,188 A.D.3d 1626
• Parties: The PEOPLE of the State of New York, Respondent, v. Loirmus DESIUS, Also Known as Baboo, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1626
135 N.Y.S.3d 214

The PEOPLE of the State of New York, Respondent,
v.
Loirmus DESIUS, Also Known as Baboo, Defendant-Appellant.

680.5
KA 18-02097

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

Entered: November 13, 2020

ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of assault in the second degree ( Penal Law § 120.05 [4] ) and dismissing count three of the indictment and as modified the judgment is affirmed.

135 N.Y.S.3d 216

Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree ( Penal Law § 120.05 [1] [intentional assault], [4] [reckless assault] ), arising from an altercation during which he punched the victim in the face approximately three times, causing the victim to fall and hit his head on the concrete sidewalk, then continued to punch the victim while he was lying on the ground unconscious. The victim died as a result of his injuries. We previously held the case, reserved decision, and remitted the matter to County Court for a ruling on defendant's objection to the verdict as inconsistent (see People v. Desius , 178 A.D.3d 1422, 1422-1423, 112 N.Y.S.3d 656 [4th Dept. 2019] ). On remittal, the court determined, for the reasons set forth in its written decision on the verdict, that its verdict convicting defendant of both intentional and reckless assault is not inconsistent.

Defendant contends that the evidence is legally insufficient to support the conviction of assault in the second degree ( Penal Law § 120.05 [1] [intentional assault] ) under the fourth count of the indictment because the People failed to establish that he intended to cause serious physical injury to the victim. We reject that contention. "[V]iewing the facts in a light most favorable to the People," we conclude that the evidence is legally sufficient to establish that defendant intended to cause serious physical injury to the victim ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see People v. Ford , 114 A.D.3d 1273, 1274, 980 N.Y.S.2d 219 [4th Dept. 2014], lv denied 23 N.Y.3d 962, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ; People v. Meacham , 84 A.D.3d 1713, 1714, 922 N.Y.S.2d 721 [4th Dept. 2011], lv denied 17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806 [2011] ). Intent can be proven by circumstantial evidence (see People v. Wiley , 104 A.D.3d 1314, 1314, 960 N.Y.S.2d 841 [4th Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1287 [2013] ), and "[a] defendant may be presumed to intend the natural and probable consequences of his [or her] actions" ( Ford , 114 A.D.3d at 1274, 980 N.Y.S.2d 219 [internal quotation marks omitted]; see Meacham , 84 A.D.3d at 1714, 922 N.Y.S.2d 721 ).

Here, eyewitnesses to the altercation testified that defendant repeatedly punched the victim while he was lying unconscious on the sidewalk. Under the circumstances, serious physical injury was the natural and probable consequence of defendant's actions (see Ford , 114 A.D.3d at 1274, 980 N.Y.S.2d 219 ; Meacham , 84 A.D.3d at 1714, 922 N.Y.S.2d 721 ). Defendant's expressions of anger toward the victim also support the inference that defendant intended to cause serious physical injury (see Meacham , 84 A.D.3d at 1714, 922 N.Y.S.2d 721 ; see generally People v. Bracey , 41 N.Y.2d 296, 301-302, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1977], rearg denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194 [1977] ).

We also reject defendant's contention that the verdict convicting him of intentional assault is against the weight of the evidence (see People v. Cooper , 50 A.D.3d 1570, 1571, 855 N.Y.S.2d 787 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ; People v. Mahoney , 6 A.D.3d 1104, 1104, 776 N.Y.S.2d 402 [4th Dept. 2004], lv denied 3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575 [2004] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

We agree with defendant, however, that the evidence is not legally sufficient to support the conviction of assault in the second degree ( Penal Law § 120.05 [4]

135 N.Y.S.3d 217

[reckless assault] ) under the third count of the indictment. Although a sidewalk or concrete surface can be "used" as a dangerous instrument ( People v. Galvin , 65 N.Y.2d 761, 763, 492 N.Y.S.2d 25, 481 N.E.2d 565 [1985] ; see People v. Al Haideri , 141 A.D.3d 742, 745, 36 N.Y.S.3d 244 [3d Dept. 2016], lv denied 28 N.Y.3d 1025, 45 N.Y.S.3d 377, 68 N.E.3d 106 [2016] ; People v. Melville , 298 A.D.2d 601, 601, 749 N.Y.S.2d 65 [2d Dept. 2002], lv denied 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ), the testimony of the eyewitnesses establishes that the blows to the victim, which were delivered using a cross-wise motion, were not executed in such a way as to establish that defendant consciously disregarded a substantial and unjustifiable risk that the victim's head would have contact with the concrete (cf. Galvin , 65 N.Y.2d at 762, 492 N.Y.S.2d 25, 481 N.E.2d 565 ; Al Haideri , 141 A.D.3d at 745, 36 N.Y.S.3d 244 ; Melville , 298 A.D.2d at 601, 749 N.Y.S.2d 65 ). Under the circumstances presented, there is no "valid line of reasoning and permissible inferences from which a rational [person]" could conclude that defendant recklessly used the sidewalk as a dangerous instrument ( Daniel...