People v. Fisher

• Decision Date: 03 November 2011
• Citation: 2011 N.Y. Slip Op. 07747,89 A.D.3d 1135,932 N.Y.S.2d 218
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent,v.Jackie J. FISHER, Appellant.

89 A.D.3d 1135
932 N.Y.S.2d 218
2011 N.Y. Slip Op. 07747

The PEOPLE of the State of New York, Respondent,
v.
Jackie J. FISHER, Appellant.

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

Nov. 3, 2011.

[932 N.Y.S.2d 219]

Neal D. Futerfas, White Plains, for appellant.Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.Before: MERCURE, J.P., PETERS, STEIN, GARRY and EGAN JR., JJ.PETERS, J.

[89 A.D.3d 1135] Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered April 3, 2009, upon a verdict convicting defendant of the crime of assault in the second degree.

Defendant was charged with assault in the second degree stemming from an incident during which he inflicted multiple stab wounds upon his mother's then-boyfriend, George Wilson. The trial evidence established that, during the early morning hours of October 25, 2008, a number of individuals were consuming alcohol at the apartment shared by defendant and his mother, Dorothy Jean Moye. At some point, Moye and Wilson began arguing and Wilson physically assaulted Moye. The police were called and, upon their arrival, Wilson was instructed to leave the apartment. Undaunted, Wilson returned shortly thereafter and, according to defendant and his girlfriend, Ashley Munson, began brandishing knives and making threatening statements towards them. After discarding the knives, Wilson went into Moye's bedroom where he again engaged in a verbal and physical altercation with her. Defendant and his brother, Donielle Fisher, then proceeded to enter the bedroom and confront Wilson. During the confrontation, Fisher struck Wilson in the head with a baseball bat, causing a large gash upon Wilson's forehead that resulted in a substantial amount of blood. Wilson left the apartment following this incident, but returned yet again. While Wilson was in the bedroom with Moye, defendant and Fisher retrieved knives from the kitchen and entered the bedroom to again confront Wilson. It was during this confrontation that defendant repeatedly stabbed Wilson.

Following a jury trial, defendant was found guilty of assault in the second degree and sentenced to a prison term of four years, to be followed by five years of postrelease supervision. He was also ordered to pay restitution in the amount of $3,448.86 for Wilson's medical expenses, but this amount was subsequently[89 A.D.3d 1136] reduced

[932 N.Y.S.2d 220]

by County Court to $671.50. Defendant appeals.

Defendant claims that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, specifically arguing that the proof did not support a finding that Wilson suffered a physical injury and that the People failed to disprove the defense of justification beyond a reasonable doubt. His challenge to the legal sufficiency of the evidence is unpreserved for our review inasmuch as he presented evidence after his unsuccessful motion to dismiss and failed to renew the motion at the close of all proof ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006]; People v. Dancy, 87 A.D.3d 759, 760, 928 N.Y.S.2d 143 [2011]; People v. Vargas, 72 A.D.3d 1114, 1116, 898 N.Y.S.2d 323 [2010], lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ). Since defendant also attacks the verdict as against the weight of the evidence, we will consider his arguments in the context of that review.

Physical injury is an “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). “A variety of factors are relevant in determining whether physical injury has been established, including the injury viewed objectively, the victim's subjective description of the injury and [his or] her pain, and whether the victim sought medical treatment” ( People v. Dixon, 62 A.D.3d 1036, 1039, 878 N.Y.S.2d 495 [2009], lvs. denied 12 N.Y.3d 912, 914, 884 N.Y.S.2d 693, 695, 12 N.Y.3d 912, 914 [2009] [internal quotation marks and citation omitted]; accord People v. Dove, 86 A.D.3d 715, 716, 926 N.Y.S.2d 758 [2011] ). Here, defendant stabbed Wilson approximately 13 times in various areas around his back, shoulder, arm and head, with the force of the blows causing the blade of the knife to bend. Following the incident, Wilson walked to the hospital where his wounds were treated and he was prescribed pain medication. Although he ultimately refused further treatment and left the hospital later that morning, Wilson explained that he did so because he did not have insurance and could not afford to incur any further medical bills. He described continuing pain in his chest and arms that lasted for approximately one month and made it difficult to move, rendering him unable to work and perform certain routine activities, such as dressing himself. He testified further that, at the time of trial, he continued to experience pain in his shoulder due to the scar tissue that had formed from the stab wounds. Based on this proof, we are satisfied that the weight of the evidence supports the jury's finding that Wilson suffered a physical injury ( see People v. Perser, 67 A.D.3d 1048, 1049, 889 N.Y.S.2d 107 [2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010]; People v. Dixon, 62 A.D.3d at 1039, 878 N.Y.S.2d 495; People v. Rivera, 42 A.D.3d 587, 588–589, 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] ).

[89 A.D.3d 1137] We next address defendant's assertion that the People failed to disprove the defense of justification. Use of deadly physical force is justified when, as relevant here, a defendant reasonably believes that such force is necessary to prevent or terminate a burglary of his or her dwelling or to protect against the use or imminent use of deadly physical force ( see Penal Law § 35.15[1], [2][a], [c]; § 35.20[3]; People v. Scharpf, 60 A.D.3d 1101, 1102, 874 N.Y.S.2d 322 [2009], lv. denied 13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101 [2009] ). “ Evaluation of the actor's belief ‘requires a determination of reasonableness that is both subjective and objective

[932 N.Y.S.2d 221]

... The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude’ ” ( People v. DiGuglielmo, 75 A.D.3d 206, 215, 902 N.Y.S.2d 131 [2010], affd. 17 N.Y.3d 771, 929 N.Y.S.2d 74, 952 N.E.2d 1068 [2011], quoting People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21 [1990]; see People v. Goetz, 68 N.Y.2d 96, 114–115, 506 N.Y.S.2d 18, 497 N.E.2d 41 [1986] ).

Here, Wilson...