People v. Dubois

• 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

2021 NY Slip Op 07364

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
QUINNTON M. DUBOIS, DEFENDANT-APPELLANT.

No. 836 KA 17-01508

Supreme Court of New York, Fourth Department

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.

Appeal from a judgment of the Supreme Court, Monroe County (J. Scott Odorisi, J.), rendered November 30, 2016. The judgment convicted defendant after a nonjury trial of attempted assault in the second degree.

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 [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 [3d Dept 2014], lv denied 25 N.Y.3d 1167 [2015] [internal quotation marks omitted]; see generally People v Ford, 114 A.D.3d 1273, 1274 [4th Dept 2014], lv denied 23 N.Y.3d 962 [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 [4th Dept 2011], lv denied 17 N.Y.3d 808 [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 [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 [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,...