People v. Haardt, 105506

• Decision Date: 18 June 2015
• Docket Number: 105506
• Citation: 11 N.Y.S.3d 727,2015 N.Y. Slip Op. 05225,129 A.D.3d 1322
• Parties: The PEOPLE of the State of New York, Respondent, v. Edmund Peter HAARDT, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1322

11 N.Y.S.3d 727

2015 N.Y. Slip Op. 05225

The PEOPLE of the State of New York, Respondent

v.Edmund Peter HAARDT, Appellant.

105506

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

June 18, 2015.

Allen E. Stone Jr., Vestal, for appellant.

Kirk O. Martin, District Attorney, Owego (Palmer J. Pelella of counsel), for respondent.

Before: PETERS, P.J., GARRY, EGAN Jr. and LYNCH, JJ.

Opinion

EGAN JR., J.

Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.), rendered April 6, 2012, upon a verdict convicting defendant of the crimes of strangulation in the second degree, assault in the third degree and unlawful imprisonment in the second degree.

Defendant was charged in a three-count indictment with strangulation in the second degree, assault in the third degree and unlawful imprisonment in the second degree. The charges stemmed from a June 2011 altercation between defendant and his then girlfriend. Following a jury trial, at which both the victim and defendant appeared and testified, the jury found defendant guilty of all charges. Defendant's subsequent motion to set aside the jury's verdict was denied, and County Court thereafter sentenced defendant to four years in prison followed by three years of postrelease supervision on the strangulation charge and to time served on the remaining charges. Defendant now appeals.

We affirm. Initially, to the extent that defendant contends that County Court erred in denying his challenge for cause with respect to a prospective juror, we need note only that the individual in question was a prospective alternate juror. As no alternate jurors participated in deliberations, defendant's argument on this point is moot (see People v. Rivera, 7 A.D.3d 358, 359, 776 N.Y.S.2d 565 [2004], lv. denied 3 N.Y.3d 741, 786 N.Y.S.2d 821, 820 N.E.2d 300 [2004] ; People v. White, 297 A.D.2d 587, 588, 748 N.Y.S.2d 349 [2002], lv. denied 99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91 [2002] ; People v. Crockett, 262 A.D.2d 205, 205, 694 N.Y.S.2d 350 [1999] ).

Turning to defendant's challenge to the legal sufficiency and weight of the evidence, “[a] person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation ... and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment” (Penal Law § 121.12 ). Insofar as is relevant here, “[a] person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she ... applies pressure on the throat or neck of such person” (Penal Law § 121.11 [a] ). As to the assault charge, “[a] person is guilty of assault in the third degree 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” (Penal Law § 120.00[1] ). Physical injury includes the “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). Finally, “[a] person is guilty of unlawful imprisonment in the second degree when he [or she] restrains another person” (Penal Law § 135.05 ).

Here, the conflicting testimony offered by the victim and defendant presented a classic credibility issue for the jury to resolve. For her part, the victim testified that, following a verbal altercation with defendant on the morning in question, defendant threw her down on a bed in the house where he was renting a room, told her “that he wanted [her] to die” and squeezed her neck to the point where she “couldn't breathe” and “almost pass[ed] out three times.” The photographs admitted into evidence depict various marks and bruises on the victim's neck (in addition to other areas of her body), and the victim testified that “it was hard to swallow for a few days” after the attack, during which time she “couldn't move [her] head ... at all.” The victim further testified that, during the melee, which lasted roughly 90 minutes, defendant repeatedly punched, kicked and bit her and pressed his thumb into one of her eyes—resulting in various additional injuries. Finally, the victim stated that when she attempted to call for help, defendant took apart her cell phone; the victim further related that she attempted to leave the residence “a couple [of] times” but that she “kept getting dragged back in[to]” the bedroom. Eventually, the victim locked herself in a bathroom and waited for the homeowner to return, at which point she was able to summon aid.

Defendant, on the other hand, testified that the victim had a history of mental health issues, as well as a fondness for consuming alcohol, “ doing pills” of various shapes and colors and engaging in rough sex. According to defendant, the physical altercation with the victim, which lasted approximately five minutes, began when he refused to engage in an “incredibly brutal” rape scenario with her, whereupon she became enraged and physically assaulted him. Although defendant could not recall the details of this encounter when initially questioned by the local police,¹ he readily admitted at trial that he punched and bit the victim in various locations—claiming that he did so in self-defense.

In our view, the victim's testimony, which clearly was credited by the jury, and the photographic evidence displaying her resulting injuries constitute legally sufficient to establish each and every element of the charged crimes (see People v. Carson, 126 A.D.3d 996, 997, 6 N.Y.S.3d 269 [2015] [assault in the third degree]; People v. Peterson, 118 A.D.3d 1151, 1154–1155, 988 N.Y.S.2d 271 [2014], lvs. denied 24 N.Y.3d 1087, 1087, 1 N.Y.S.3d 14, 14, 25 N.E.3d 351, 351 [2014] [strangulation in the second degree]; People v. Lotmore, 276 A.D.2d 901, 901–902, 715 N.Y.S.2d 94 [2000], lv. denied 96 N.Y.2d 736, 722 N.Y.S.2d 803, 745 N.E.2d 1026 [2001] [unlawful imprisonment in the second degree] ). Additionally, while a different verdict would not have been...