People v. Hernandez

• Citation: 86 N.Y.S.3d 784,165 A.D.3d 1473
• Decision Date: 25 October 2018
• Docket Number: 107152
• Parties: The PEOPLE of the State of New York, Respondent, v. Norberto HERNANDEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1473
86 N.Y.S.3d 784

The PEOPLE of the State of New York, Respondent,
v.
Norberto HERNANDEZ, Appellant.

107152

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

Calendar Date: September 11, 2018
Decided and Entered: October 25, 2018

Amanda FiggsGanter, Albany, for appellant.

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

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

MEMORANDUM AND ORDER

Garry, P.J.

86 N.Y.S.3d 785

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 20, 2012, convicting defendant following a nonjury trial of the crimes of assault in the first degree and criminal possession of a weapon in the fourth degree.

After a December 2010 altercation in which the victim was stabbed, defendant was charged with assault in the first degree and criminal possession of a weapon in the fourth degree. As pertinent here, defendant asserted the defense of justification. Following a nonjury trial, he was convicted as charged and sentenced to a prison term of 7½ years, to be followed by three years of postrelease supervision. Defendant appeals.

Defendant asserts that his convictions are not supported by legally sufficient evidence and are against the weight of the evidence on several grounds, including a claim that the People failed to disprove his justification defense beyond a reasonable doubt. As a preliminary matter, defendant's legal sufficiency challenge is unpreserved, as his general motion for a trial order of dismissal was not specifically directed at any of the alleged errors (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Perillo , 144 A.D.3d 1399, 1400, 41 N.Y.S.3d 776 [2016], lvs denied 29 N.Y.3d 948, 951, 54 N.Y.S.3d 379, 382, , 1085 [2017] ). Nevertheless, as part of this Court's weight of the evidence review, "we necessarily determine whether the elements of the crime[s] were proven beyond a reasonable doubt and whether the justification defense was disproven" ( People v. Vanderhorst , 117 A.D.3d 1197, 1198, 984 N.Y.S.2d 688 [2014], lv denied 24 N.Y.3d 1089, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] ; see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). "[T]he appropriate standard for evaluating a weight of the evidence argument on appeal is the same regardless of whether the finder of fact was a judge or a jury" ( People v. Race , 78 A.D.3d 1217, 1219–1220, 910 N.Y.S.2d 271 [2010] [internal quotation marks and citation omitted], lv denied 16 N.Y.3d 835, 921 N.Y.S.2d 199, 946 N.E.2d 187 [2011] ; accord People v. Crosby , 151 A.D.3d 1184, 1185, 56 N.Y.S.3d 376 [2017] ).

The trial evidence established that defendant and his estranged wife had separated a few months before the incident and that the victim and the wife were in a romantic relationship that had begun before the separation. These three individuals, who were the only witnesses to the altercation, gave sharply conflicting accounts of the event. The victim testified that he had never previously met defendant and had seen him only once before the incident. On Christmas Eve, he drove a car that he had borrowed from a mutual friend to the mall, where he met the wife to do some last minute holiday shopping. They visited several stores, where the wife shopped for a gift for her daughter. After she purchased the gift, the victim transported her to a restaurant where she was scheduled to work an evening shift. At the wife's workplace, the victim saw a parked red car. When he opened the door to help the wife with her purchases, the red car moved and blocked his car. The driver, who proved to be defendant, emerged and told the victim that he wanted to see him. The victim responded that he had nothing to talk with defendant about. He testified that he was helping the wife unload shopping bags from the vehicle when defendant "jumped on top of [him]," started hitting him and threw him to the ground, where the two men wrestled with each other. While they struggled,

86 N.Y.S.3d 786

the victim was "hit" with "something," causing him to grab the area of his left upper chest, where he felt a laceration. Defendant "went on top of [the victim] again" and they continued to fight. The victim asserted that he heard defendant say that he wanted to "take [his] eye out" and that he was going to kill the victim. As they struggled, defendant inflicted wounds on the victim's face, hand and head. The victim said that defendant then went to his car and left while the victim remained lying on the pavement, and that, at some point, defendant returned briefly, apparently to get something, and then left again. The victim said that the object that cut him was a "thing with a blade" about four inches long. Photographs of his injuries, including a wound to the left chest and multiple lacerations on the face, head and hand, were admitted into evidence along with the victim's medical records. The victim displayed scars on his face, head and chest during the trial, and defendant and the People stipulated that he had suffered serious physical injury within the meaning of the Penal Law.

The wife, who was no longer romantically involved with the victim by the time of trial, testified for the People, but gave a significantly different account of events from that offered by the victim. She testified that she and defendant retained a friendly relationship after their separation because they had a young daughter. On Christmas Eve, she and defendant planned to meet at the mall to buy a dress for the daughter. However, defendant did not receive an expected lunch break from his work as a chef at a nearby restaurant, so he met the wife briefly, gave her some money and returned to work. The victim then called the wife, who told him that she was shopping for gifts for her to give to the daughter and for the daughter to give to defendant. The victim came to the mall and ordered the wife not to buy gifts for defendant. When she refused, the victim became "mad" and stopped speaking to her.

The wife completed her shopping and the victim drove her to the restaurant where she was scheduled to work. The wife testified that she and defendant had previously arranged to meet briefly at the restaurant so that she could give him the daughter's new dress. They had also made plans to meet again later that night to celebrate the holiday with the daughter and other family members. When she and the victim arrived at the restaurant, defendant's car was in the parking lot. The victim asked why he was there and became upset when the wife told him about their plans for the evening. She asked the victim to drop her off and leave, but he refused and parked the car. The wife got out, saw defendant as she walked toward the restaurant, spoke with him briefly about the dress exchange and said that she had to go because she was running late for her shift. The victim, whom the wife described as "really mad," then joined them, complaining to the wife that he thought she was late to work. The wife "tried to explain" the plans for the dress exchange to the victim and, because she was late, continued into the restaurant, telling the victim and defendant to "just talk and leave." When she left, the two men were arguing, but were not physically fighting. After she punched in, however, someone told her that defendant and the victim had begun to fight. She went back outside and saw the victim on top of defendant, punching him in the face. She tried and failed to separate them, unsuccessfully sought help inside the restaurant, called 911 and went back outside. When she returned, defendant was gone and the victim was near the restaurant doorway, bleeding. She testified that the victim later told her that he had chased defendant after the

86 N.Y.S.3d 787

fight, saying that he was having difficulty breathing but "still went to [defendant's] car to get him."

Defendant testified on his own behalf, stating that he had learned about the wife's affair with the victim shortly after their separation and had never met the victim, but had seen a picture of him and had once spoken with him briefly on the telephone. He said that he and the wife had remained friendly after the separation, that he wanted to avoid conflict with the victim for the sake of the wife and daughter and that he had no wish to fight with the victim, having heard that he was violent and got into frequent fights. Defendant's testimony was similar to the wife's in describing their interrupted plans to go shopping together and the arrangements to exchange the daughter's dress. He said that he went to the wife's workplace for this purpose at about 5:00 p.m., found that she had not yet arrived, and was walking toward his car to leave when the wife got out of an arriving car. Defendant recognized the car as belonging to the mutual friend, and so thought that the friend was driving. The wife spoke briefly with defendant, told him that she was late and hurried into work. As she did so, the victim suddenly came up and, after saying something to defendant, took a swing at him. They began to struggle, and defendant testified that the victim hit him two or three times on the left side of his head, using what defendant believed were brass knuckles and striking him so hard...