People v. Hills

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BROWN; SPATT; BROWN
• Citation: People v. Hills, 532 N.Y.S.2d 269, 140 A.D.2d 71 (N.Y. App. Div. 1988)
• Decision Date: 29 August 1988
• Parties: The PEOPLE, etc., Respondent, v. Tracy HILLS, Appellant.

Page 269

532 N.Y.S.2d 269

140 A.D.2d 71

The PEOPLE, etc., Respondent, v. Tracy HILLS, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 29, 1988.

Philip L. Weinstein, New York City (Elizabeth J. Vila, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Richard T. Faughnan and Peter L. Brightbill, of counsel), for respondent.

Before BROWN, J.P., and KUNZEMAN, EIBER and SPATT, JJ.

SPATT, Justice.

This case presents a question of first impression in this State--the legal effect of an offer by a defendant in a criminal trial to stipulate to a material element of a crime charged. We hold that the prosecution is under no legal obligation to accept such an offer. Therefore, the refusal of the prosecutor to accept the defendant's offer with respect to the element of serious physical injury, and the trial court's refusal to compel its acceptance by precluding medical evidence were proper. We further find that the probative value of the medical evidence, as to both the degree of injury and the defendant's intent, outweighed any prejudice to the defendant by its admission. Accordingly, the judgment of conviction is affirmed.

I THE CRIME

This case arises out of an assault and robbery of Lewyn McClain, aged 70 years at the time of trial, committed on a Brooklyn street shortly after midnight on October 4, 1984. The defendant was identified as the perpetrator within minutes of the crime and was subsequently charged with two counts of robbery in the first degree, two counts of assault in the first degree, and one count of robbery in the second degree.

The evidence offered by the prosecution at trial established that on the night in question, Mr. McClain, a retired municipal employee, went to the corner of Herkimer Street and New York Avenue in Brooklyn to make a call from a public telephone. As Mr. McClain was walking away after completing his call, he was approached by a person who looked like a woman and who was attired in blue jeans, a gold-colored jacket and spike-heeled shoes. The person asked whether he "wanted some sport, Pops". Mr. McClain replied, "No, get away from me, you old whore". The person then came toward Mr. McClain and shouted for him to "[g]et out of this block, old man". Mr. McClain quickened his pace and, upon turning to look behind him, saw that the person was chasing him with a knife. Mr. McClain pulled out his own knife to defend himself.

A similarly-attired second person quickly joined in the attack upon Mr. McClain. The second person ran behind Mr. McClain while the first person taunted him and menaced him with the knife. The attackers continuously circled McClain and cut off any avenue of escape. While this was transpiring, the defendant, who is male but who was attired as a woman wearing a wig and a red jacket, approached from across the street carrying a piece of wood. The defendant went behind Mr. McClain. Within seconds, Mr. McClain felt a blow to the back of his head. He fell to his knees and was struck again. The second blow landed behind his right ear. Mr. McClain lost consciousness briefly but recalled feeling someone searching through his pockets as he lay on the ground.

At the trial, Mr. McClain testified that his money, wallet, credit cards, identification and a duffle bag he had been carrying were taken.

Kevin McDonald, a security guard who worked and lived in the neighborhood, witnessed the attack on Mr. McClain. At the trial, Mr. McDonald testified that he had seen the defendant, dressed variously as a man or woman, in the area on an almost daily basis for approximately three to six months preceding the crime. He further testified that he recognized the defendant among the people pursuing Mr. McClain that night and observed the defendant strike Mr. McClain over the head with a board. Once Mr. McClain had fallen to the ground, the defendant went through the victim's pockets while the other attackers kicked the victim on the side of his body.

While Mr. McDonald called the police from a public telephone, the defendant and two accomplices ran past him. Mr. McDonald then spotted and flagged down a car he knew to be an unmarked police car. The police car was being driven by Sergeant Neil Spadaro. After speaking to Kevin McDonald, Sergeant Spadaro drove after three people who were walking away from the intersection. One of the three turned toward the police vehicle, and then all three began to run. Sergeant Spadaro pulled in front of the three people and ordered them to stop. He put the three people, one of whom was the defendant, in the back of police car and drove back to where Mr. McClain was still lying on the ground. Mr. McClain identified only the defendant who was then arrested while the other two people were released. The defendant told Sergeant Spadaro that he had witnessed, but had not participated in, the attack on Mr. McClain.

At the trial, the defendant testified that he did not strike or rob Mr. McClain. He admitted that he had frequented the corner of Herkimer and New York Avenue a "couple of nights a week" for many weeks. The defendant stated that on the night in question, he was dressed as a woman in a long wig and a red jacket and was working as a prostitute on that corner. He testified that he observed two people following and then fighting with Mr. McClain. In the course of the fight, he observed a person whom he described as six feet tall, 140 pounds, with braided hair and wearing jeans and a gold-colored jacket, strike Mr. McClain. Although he did not know the attacker's name, he stated that he had seen this person on the street corner on a number of prior occasions. The defendant stated that he ran over to the scene of the assault, saw Mr. McClain lying on the ground, bleeding, then walked away, and was quickly arrested by plainclothes police officers.

THE MEDICAL EVIDENCE

Before the opening statements, the defendant's attorney offered to stipulate that Mr. McClain sustained serious physical injuries as a result of this incident. The prosecutor declined the offer. The defense counsel then asked the trial court to preclude the prosecution from adducing medical testimony concerning the victim's injuries on the ground that such testimony "would create undue prejudice" to the defendant. The court denied this request, stating:

"The People have the right to prove the case the way in which they want to prove their case, providing it's within the confines of this law, and the Court knows of no ruling wherein the People may not bring in a doctor to show the serious injuries that the complainant suffered".

With respect to his injuries, Mr. McClain testified that he felt pain behind his right ear and was confined to the hospital for 22 days. He also stated that he lost his hearing in his right ear and part of a tooth, and that since the assault he had been unable to walk straight due to an impairment of his equilibrium. At the time of trial, approximately one and one-half years after the crime, Mr. McClain continued to be examined by his family doctor monthly and by a neurologist semi-annually.

The testimony of Mr. McDonald and Sergeant Spadaro relevant to the victim's injuries was limited to their observations of blood seeping from the right side of Mr. McClain's head. The defendant similarly testified that Mr. McClain was bleeding.

The prosecution called Dr. Paul Daniel Carlisle, the chief resident in neurology at Kings County Hospital. The defense counsel renewed his motion to preclude this witness's testimony, which was again denied by the court. The prosecutor did, however, agree to a stipulation offered by the defense that Dr. Carlisle was an expert in neurology. Dr. Carlisle testified that he examined Mr. McClain in the emergency room of Kings County Hospital on October 4, 1984. Although Mr. McClain was conscious and alert, the doctor observed blood and cerebrospinal fluid dripping from his right ear. Dr. Carlisle explained that cerebrospinal fluid is a fluid contained in a sac surrounding the brain which serves the dual purposes of keeping the brain moist and protecting it from impact.

Dr. Carlisle also observed soft-tissue swelling over the right side of Mr. McClain's head. He reviewed X-rays of Mr. McClain's skull and observed an "easily identifiable linear scar fracture". He further noted blood behind Mr. McClain's right eardrum and that the patient had marked difficulty hearing in the right ear. Dr. Carlisle concluded that the injury suffered by Mr. McClain "damaged both the hearing aspect of the inner ear and * * * the vestibular aspect, which is the apparatus in the brain which allows us to walk and perform motion tasks and maintain balance".

THE CHARGE

The trial court submitted to the jury four of the five counts charged in the indictment. Two of the submitted counts, assault in the first degree and robbery in the first degree, as charged in the third and fourth counts of the indictment, respectively, were crimes which included, as an element, serious physical injury. Assault in the first degree was charged in the fourth count of the indictment pursuant to Penal Law § 120.10(1), which provides:

"A person is guilty of assault in the first degree when:

"1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument".

Robbery in the first degree was charged in the third count of the indictment under Penal Law § 160.15(1), which provides:

"A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

"1. Causes serious physical injury to any person who is not a participant in the crime".

Penal Law § 10.00(10) defines the term "serious physical injury" as:

"physical injury which creates a substantial risk of death,...