People v. Dubois

• Citation: 155 N.Y.S.3d 888 (Mem),200 A.D.3d 1601
• Decision Date: 23 December 2021
• Docket Number: 836,KA 17-01508
• Parties: The PEOPLE of the State of New York, Respondent, v. Quinnton M. DUBOIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1601

155 N.Y.S.3d 888 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Quinnton M. DUBOIS, Defendant-Appellant.

836

KA 17-01508

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

Entered: December 23, 2021

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of attempted assault in the second degree ( Penal Law §§ 110.00, 120.05 [1] ). Defendant contends that the evidence is legally insufficient to establish that he intended to cause serious physical injury to the victim. We note at the outset that, contrary to the conclusion of the dissent, Supreme Court expressly addressed each of the specific arguments raised in defendant's motion for a trial order of dismissal, including the argument raised on appeal, and we are therefore not left in a position in which we would have to impermissibly deem the court's failure to rule on the motion as a denial thereof (cf. People v. Capitano , 198 A.D.3d 1324, 1324-1325, 152 N.Y.S.3d 391 [4th Dept. 2021] ). With respect to the merits, we reject defendant's argument. "Attempted assault in the second degree can be proven without any serious physical injury or even any physical injury; all that is required is that the defendant intended such injury and engaged in conduct directed at accomplishing that objective" ( People v. McCloud , 121 A.D.3d 1286, 1287, 995 N.Y.S.2d 269 [3d Dept. 2014], lv denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] [internal quotation marks omitted]; see generally 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] ). Here, defendant's intent may be "inferred from the totality of [his] conduct," which included "repeatedly striking [the victim] while [she was] on the ground defenseless" ( 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] ). Further, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is 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] ).

All concur except Curran, J., who dissents and votes to hold the case, reserve decision and remit the matter to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum:

I respectfully dissent and would hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant's motion for a trial order of dismissal because the court never expressly decided defendant's motion adversely to him. Compelling that conclusion, I note that the Court of Appeals " ‘has construed CPL 470.15 (1) as a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court’ " ( People v. Hallmark , 122 A.D.3d 1438, 1439, 996 N.Y.S.2d 453 [4th Dept. 2014], quoting People v. LaFontaine , 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998], rearg denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094 [1999] ; see People v. Coles , 105 A.D.3d 1360, 1363, 966 N.Y.S.2d 288 [4th Dept. 2013] ). Further, I note that this Court has repeatedly held that it lacks the power to review a sufficiency contention where the court has not expressly ruled on, and denied, a defendant's motion for a trial order of dismissal (see e.g. People v. Johnson , 192 A.D.3d 1612, 1615-1616, 143 N.Y.S.3d 763 [4th Dept. 2021] ; People v. Bennett , 180 A.D.3d 1357, 1358, 115 N.Y.S.3d 737 [4th Dept. 2020] ; People v. Moore , 147 A.D.3d 1548, 1548-1549, 48 N.Y.S.3d 567 [4th Dept. 2017] ; see generally People v. Spratley , 96 A.D.3d 1420, 1421, 946 N.Y.S.2d 361 [4th Dept. 2012] ), even in the context of a nonjury trial (see e.g. People v. Capitano , 198 A.D.3d 1324, 1324-1325, 152 N.Y.S.3d 391 [4th Dept. 2021] ; People v. White , 134 A.D.3d 1414, 1415, 22 N.Y.S.3d 723 [4th Dept. 2015] ).

Here, during the nonjury trial, the court expressly reserved decision on defendant's motion for a trial order of dismissal. Although the Criminal Procedure Law requires a court to determine a motion on which it has reserved decision (see CPL 290.10 [1] ; 320.20 [4]), the court here never again addressed that motion by name on the record. Rather, in rendering its verdict, the court stated merely that, "based upon the credible trial evidence, this [c]ourt finds the defendant guilty of ... attempted assault in the second degree [because] there was legally sufficient proof that the defendant intended to cause the victim serious physical injury based upon his conduct, and [in] consideration of all the surrounding circumstances."

In reaching the merits of defendant's legal sufficiency contention, the majority tacitly concludes that the court implicitly denied defendant's motion when it rendered its guilty verdict, likely due to the court's reference to the "legally sufficient proof" supporting its finding of guilt. I respectfully disagree with this approach for two reasons. First, as noted above, the court did not determine defendant's motion as required by the Criminal Procedure Law, but instead rendered its verdict. Second, this Court's precedent in applying LaFontaine and its progeny has repeatedly rejected reliance on a court's "implicit" determinations to reach the merits of an issue and instead requires that a court must "expressly ‘decide [an] issue...