People v. Gill

• Citation: 90 N.Y.S.3d 392,168 A.D.3d 1140
• Decision Date: 03 January 2019
• Docket Number: 108988
• Parties: The PEOPLE of the State of New York, Respondent, v. Rasheed GILL, Appellant.
• Court: New York Supreme Court Appellate Division

168 A.D.3d 1140
90 N.Y.S.3d 392

The PEOPLE of the State of New York, Respondent,
v.
Rasheed GILL, Appellant.

108988

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

Calendar Date: November 20, 2018
Decided and Entered: January 3, 2019

90 N.Y.S.3d 393

Catherine A. Barber, Guilderland, for appellant.

P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.

Before: Garry, P.J., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

168 A.D.3d 1140

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered September 28, 2016, upon a verdict convicting defendant of the crimes of attempted assault in the first degree and assault in the second degree.

90 N.Y.S.3d 394

Defendant was charged by indictment with attempted assault in the first degree and assault in the second degree based on allegations that he struck the victim in the head with a hammer. After a jury trial, defendant was convicted as charged and was sentenced to concurrent prison terms of seven years on each conviction, to be followed by a maximum of five years of postrelease supervision. Defendant appeals.

Defendant contends that his conviction for attempted assault in the first degree is not supported by legally sufficient evidence because there was no evidence that he intended to cause serious physical injury to the victim and that the verdict as to both convictions is against the weight of the evidence. Defendant's legal insufficiency challenge is unpreserved for our review because he did not specifically raise the intent issue in his motion for a trial order of dismissal (see People v. Williams, 163 A.D.3d 1160, 1161, 80 N.Y.S.3d 547 [2018] ; People v. Stokes, 159 A.D.3d 1041, 71 N.Y.S.3d 746 [2018] ). Nevertheless, in conducting our weight of the evidence review, we must consider whether each element of the charged crimes was proven beyond a reasonable doubt (see People v. Williams, 163 A.D.3d at 1161, 80 N.Y.S.3d 547 ).

"When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this

168 A.D.3d 1141

review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Creech, 165 A.D.3d 1491, 1492, 87 N.Y.S.3d 384 [2018] [internal quotation marks and citations omitted] ). As relevant here, a person commits attempted assault in the first degree by using a deadly weapon or dangerous instrument with the intent to cause serious physical injury to a person (see Penal Law §§ 110.00, 120.10[1] ), and serious physical injury is a "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" ( Penal Law § 10.00[10] ). A person commits assault in the second degree, as relevant here, when, "[w]ith intent to cause physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument" ( Penal Law § 120.05[2] ), and physical injury "means impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ).

The charges arose out of an incident that occurred in December 2015 at a residence...