People v. Infinger

• Citation: 147 N.Y.S.3d 247,194 A.D.3d 1183
• Decision Date: 13 May 2021
• Docket Number: 110446
• Parties: The PEOPLE of the State of New York, Respondent, v. Dishawn INFINGER, Appellant.
• Court: New York Supreme Court Appellate Division

194 A.D.3d 1183
147 N.Y.S.3d 247

The PEOPLE of the State of New York, Respondent,
v.
Dishawn INFINGER, Appellant.

110446

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

Calendar Date: March 17, 2021
Decided and Entered: May 13, 2021

147 N.Y.S.3d 248

Sandra M. Colatosti, Albany, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jaime A. Douthat of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

147 N.Y.S.3d 249

Appeal from a judgment of the County Court of Clinton County (Favreau, J.), rendered February 8, 2018, upon a verdict convicting defendant of the crimes of assault in the second degree, criminal possession of a weapon in the third degree and promoting prison contraband in the first degree.

In June 2016, defendant – an inmate at Clinton Correctional Facility – allegedly struck a correction officer who was attempting to perform a strip frisk after finding a scalpel-type weapon in defendant's cell. In connection therewith, defendant was charged by indictment with assault on a peace officer (count 1), assault in the second degree (count 2), criminal possession of a weapon in the third degree (count 3) and promoting prison contraband in the first degree (count 4). A jury trial ensued, during which defendant raised a justification defense. Defendant was acquitted of count 1, but otherwise convicted of the remaining charges. He was sentenced, as a second felony offender, to a prison term of six years, with five years of postrelease supervision, upon the conviction of assault in the second degree, and to prison terms of 3 to 6 years for each of the remaining convictions, to run concurrently with one another but consecutively to the sentence that defendant was presently serving. Defendant appeals.

We affirm. Defendant challenges the verdict on assault in the second degree as against the weight of the evidence, asserting that the People failed to disprove his justification defense and did not establish the physical injury component of that crime. As relevant here, a person is guilty of assault in the second degree when, "[w]ith intent to prevent a peace officer ... from performing a lawful duty ... he or she causes physical injury to such peace officer" ( Penal Law § 120.05 [3] ). Physical injury means "impairment of physical condition or substantial pain" ( Penal Law § 10.00 [9] ). "To qualify as substantial pain within the meaning of the Penal Law, the pain must be 'more than slight or trivial,' but it 'need not ... be severe or intense' " ( People v. Diaz , 163 A.D.3d 110, 113, 78 N.Y.S.3d 792 [2018], lv denied 32 N.Y.3d 1110, 91 N.Y.S.3d 362, 115 N.E.3d 634 [2018], quoting People v. Chiddick , 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ). Factors relevant to the inquiry include "an objective assessment of the injury sustained, the victim's subjective description of the injury and whether the victim sought any medical treatment to address [it]" ( People v. Diaz , 163 A.D.3d at 114, 78 N.Y.S.3d 792 [internal quotation marks and citations omitted]).

With respect to the defense of justification for the use of ordinary physical force, "unless the defendant is the initial aggressor, he or she may ‘use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person’ " ( People v. Williams, 161 A.D.3d 1296, 1296–1297, 77 N.Y.S.3d 216 [2018], lv denied 32 N.Y.3d 942, 84 N.Y.S.3d 869, 109 N.E.3d 1169 [2018], quoting Penal Law § 35.15[1] ). The People bear the burden of disproving the justification defense beyond a reasonable doubt (see People v. Brown, 33 N.Y.3d 316, 321, 102 N.Y.S.3d 143, 125 N.E.3d 808 [2019] ; People v. Brinkley, 174 A.D.3d 1159, 1161, 106 N.Y.S.3d 210 [2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 646, 137 N.E.3d 16 [2019] ; People v. Every, 146 A.D.3d 1157, 1161, 46 N.Y.S.3d 695 [2017], affd

147 N.Y.S.3d 250

29 N.Y.3d 1103, 61 N.Y.S.3d 194, 83 N.E.3d 202 [2017] ).

At trial, correction officer Chad Stickney testified that he located a scalpel-type weapon inside of a roll of toilet paper during an authorized search of defendant's cell. After finding the contraband, Stickney placed defendant in mechanical restraints and escorted him to a secure area for a strip search. Stickney removed the restraints from defendant's wrists and ordered him to place his hands flat against the wall. According to Stickney, as he was reaching behind his back to secure the restraints on his belt, defendant "turned off the wall and punched [him] in the face with a closed fist." Stickney "returned blows in the same manner with closed fists towards [defendant's] face." Stickney explained that defendant hit him several times and "kick[ed] [him] in the mid-section and in the right knee." Ron Wood, a correction sergeant, generally corroborated Stickney's testimony about the altercation, explaining that he helped escort defendant to the secure location and that defendant spun around and struck Stickney in the face when he was attempting to perform a strip frisk. Douglas Evens, another correction officer, testified that he saw defendant "throwing fists" and "kicking towards [o]fficer Stickney" when he reported to the scene after hearing a commotion.

Following the incident, Stickney reported to the prison hospital in "minor pain" with "contusions and swelling ... to the left side of [his] face" as well as "redness ... and swelling to [his] knee." Stickney remained on duty but described his knee as "sore" and "stiff" after his shift ended. He acknowledged that he had knee surgery in 2002, which caused swelling and arthritis on damp or cold days. Stickney continued to work for five days before going on a previously planned vacation. He testified that his knee was "progressively getting worse" and that he was unable to return to work as previously scheduled in early July 2016. He went to the emergency room – where he did not take the pain medication that he was given – and had X rays taken, explaining that his knee pain was a "four to five" on the pain scale at that point, intermittent and "like a toothache." Stickney underwent knee replacement surgery in September 2016, enduring a "very painful" recovery. He returned to work on a full-time basis around the end of March 2017. On cross-examination, Stickney acknowledged that he had...