People v. Diaz, 107635

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Clark, J.
• Citation: 78 N.Y.S.3d 792,163 A.D.3d 110
• Decision Date: 14 June 2018
• Docket Number: 107635
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan DIAZ, Appellant.

163 A.D.3d 110
78 N.Y.S.3d 792

The PEOPLE of the State of New York, Respondent,
v.
Juan DIAZ, Appellant.

107635

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

Decided and Entered: June 14, 2018
Calendar Date: April 25, 2018

78 N.Y.S.3d 794

Bruce Evans Knoll, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Hannah E.C. Moore, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Rumsey, JJ.

Clark, J.

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered June 4, 2014, upon a verdict convicting defendant of the crimes of assault in the second degree (two counts), criminal possession of a weapon in the third degree and promoting prison contraband in the first degree (two counts).

In June 2013, defendant and several other inmates at the Great Meadow Correctional Facility were being escorted to breakfast when defendant broke from the line and stabbed a correction officer twice with a makeshift weapon. The weapon was ultimately secured during the ensuing struggle between defendant and responding correction officers and, as the officers attempted to restrain defendant, a second weapon was found on him. Defendant was subsequently indicted for attempted murder in the second degree, two counts of assault in the second degree, criminal possession of a weapon in the third degree and two counts of promoting prison contraband in the first degree. Following a jury trial, defendant was acquitted of the charge of attempted murder in the second degree, but found guilty of the remaining charges. County Court sentenced defendant to an aggregate prison term of 25 years to life. Defendant now appeals, and we affirm.

Defendant argues that the evidence was legally insufficient to establish the element of physical injury required for both of his assault convictions (see Penal Law § 120.05[2], [7] ). Under the Penal Law, physical injury is defined as an "impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ). Whether the statutory substantial pain threshold has been satisfied is generally a question for the trier of fact; however, there is an objective level below which the question becomes one of law (see Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] ; People v. Rivera, 42 A.D.3d 587, 588, 838 N.Y.S.2d 727 [2007], lv denied 9 N.Y.3d 880, 842 N.Y.S.2d 792, 874 N.E.2d 759 [2007] ;

78 N.Y.S.3d 795

People v. Colantonio, 277 A.D.2d 498, 499–500, 715 N.Y.S.2d 764 [2000], lv denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214 [2001] ). To qualify as substantial pain within the meaning of the Penal Law, the pain must be "more than slight or trivial," but it "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] ; accord People v. Hicks, 128 A.D.3d 1221, 1222, 9 N.Y.S.3d 474 [2015], lv denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] ; see People v. Johnson, 150 A.D.3d 1390, 1392, 53 N.Y.S.3d 412 [2017], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ). Several factors are relevant to determining whether "enough pain was shown to support a finding of substantiality," including an objective assessment of the injury sustained, the victim's subjective description of the injury and whether the victim sought any medical treatment to address the injury ( People v. Chiddick, 8 N.Y.3d at 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ; see People v. Hicks, 128 A.D.3d at 1222, 9 N.Y.S.3d 474 ; People v. Nisselbeck, 85 A.D.3d 1206, 1207–1208, 923 N.Y.S.2d 801 [2011] ).

The evidence at trial established that defendant stabbed the unsuspecting victim in the left temple and left abdomen with an "ice pick type weapon" measuring roughly seven inches in length, thereby causing the victim to sustain puncture wounds in both areas, bleed "profusely" and require immediate medical treatment at the prison infirmary, and thereafter at a local hospital. The victim testified that he was "sore," "upset" and "visibly shaken" on the day of the attack and that he began to develop worsening symptoms in the days and weeks that followed. Specifically, the victim testified that the left side of his head was swollen, bruised and sore to the touch and that he was therefore unable to sleep on his left side. The victim also stated that he experienced occasional, debilitating headaches for roughly 1½ weeks after the incident. The victim also complained of neck pain that prompted him to seek treatment with a chiropractor and to report on his first visit that his pain measured at an 8 on a scale of 1 to 10. Testimony from the chiropractor, as well as relevant medical records, demonstrated that the victim had a strain injury to his cervical spine that restricted the range of motion in his neck and required 18 treatment visits over a period of three months. The victim further testified that after the attack, he had repeated nightmares that caused him to wake up struggling in his sleep and that he sought treatment from a primary care physician, who prescribed him antianxiety medication. Viewing this evidence in the light most favorable to the People and affording them the benefit of every favorable inference (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we are satisfied that there is a valid line of reasoning and permissible inferences from which a rational person could conclude that defendant caused the victim physical injury, as defined in Penal Law § 10.00(9) (see People v. Fields, 160 A.D.3d 1116, 1117–1118, 75 N.Y.S.3d 617 [2018] ; People v. Hicks, 128 A.D.3d at 1222, 9 N.Y.S.3d 474 ; People v. Douglas, 85 A.D.3d 1585, 1586, 924 N.Y.S.2d 715 [2011] ; People v. Porter, 305 A.D.2d 933, 934, 761 N.Y.S.2d 691 [2003], lv denied 100 N.Y.2d 586, 764 N.Y.S.2d 396, 796 N.E.2d 488 [2003] ). The jury's determination to credit the foregoing proof, in spite of defendant's challenges thereto, was not against the weight of the evidence (see People v. Fields, 160 A.D.3d at 1118, 75 N.Y.S.3d 617 ; People v. Boyd, 97 A.D.3d 898, 899, 948 N.Y.S.2d 450 [2012], lv denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327 [2013] ).

Defendant's next two challenges relate to the division of final decision-making authority

78 N.Y.S.3d 796

between a represented defendant and his or her attorney. With respect to his defense as a whole, defendant contends that County Court impermissibly allowed defense counsel to overrule defendant's preference to pursue a psychiatric defense at trial—a decision that he claims is fundamental and ultimately belongs to him. Secondly, defendant argues that, in violation of his Sixth Amendment right to the expert judgment of counsel, defense counsel abdicated strategic decision-making authority to defendant by acceding to his decision to forgo a mistrial following certain prejudicial testimony. We disagree with defendant on both points.

"A defendant having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case," including "whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal" ( People v. White, 73 N.Y.2d 468, 478, 541 N.Y.S.2d 749, 539 N.E.2d 577 [1989], cert denied 493 U.S. 859, 110 S.Ct. 170, 107 L.Ed.2d 127 [1989] ; see Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 [1983] ; People v. Petrovich, 87 N.Y.2d 961, 963, 641 N.Y.S.2d 592, 664 N.E.2d 503 [1996] ). "With respect to strategic and tactical decisions concerning the conduct of trials, by contrast, defendants are deemed to repose decision-making authority in their lawyers ... and defendants do not retain a personal veto power over counsel's exercise of professional judgments" ( People v. Colon, 90 N.Y.2d 824, 826, 660 N.Y.S.2d 377, 682 N.E.2d 978 [1997] ; see People v. Ferguson, 67 N.Y.2d 383, 390, 502 N.Y.S.2d 972, 494 N.E.2d 77 [1986] ; People v. Parker, 290 A.D.2d 650, 651, 736 N.Y.S.2d 162 [2002], lv denied 98 N.Y.2d 679, 746 N.Y.S.2d 469, 774 N.E.2d 234 [2002] ). "If defense counsel solely defers to a defendant, without exercising his or her professional judgment, on a decision that is ‘for the attorney, not the accused, to make’ because it is not fundamental, the defendant is deprived of ‘the expert judgment of counsel to which the Sixth Amendment entitles him’ or her" ( People v. Hogan, 26 N.Y.3d 779, 786, 28 N.Y.S.3d 1, 48 N.E.3d 58 [2016], quoting People v. Colville, 20 N.Y.3d 20, 32, 955 N.Y.S.2d 799, 979 N.E.2d 1125 [2012] ).

We first address defendant's contention that defense counsel was required to present, in accordance with defendant's preference, a psychiatric defense premised upon the theory that he suffered from Secure Housing Unit Syndrome—also known as Grassian Syndrome—caused by the "considerable" amount of time that he spent in solitary confinement while incarcerated. The record reflects that, prior to trial, defense counsel timely served and filed a written notice of intention to present psychiatric evidence relating to Grassian Syndrome (see CPL 250.10[2] ). In furtherance of that intention, defense counsel successfully...