People v. Ingram

• Citation: 943 N.Y.S.2d 311,95 A.D.3d 1376,2012 N.Y. Slip Op. 03484
• Parties: The PEOPLE of the State of New York, Respondent, v. Weldon INGRAM Jr., Appellant.
• Decision Date: 03 May 2012
• Court: New York Supreme Court Appellate Division

2012 N.Y. Slip Op. 03484
943 N.Y.S.2d 311
95 A.D.3d 1376

The PEOPLE of the State of New York, Respondent,
v.
Weldon INGRAM Jr., Appellant.

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

May 3, 2012.

[943 N.Y.S.2d 312]

Catherine A. Barber, Albany, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ.

GARRY, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered March 21, 2011, convicting defendant following a nonjury trial of the crime of assault in the second degree (two counts).

In January 2010, defendant hit and kicked his girlfriend (hereinafter the victim). In April 2010, he punched her repeatedly in the eyes. He was subsequently indicted on two counts of assault in the second degree and convicted as charged following a nonjury trial. County Court sentenced defendant to an aggregate prison term of 10 1/2 years with six years of postrelease supervision.

Defendant appeals, asserting that his convictions are not supported by the weight of the evidence.¹ In evaluating this

[943 N.Y.S.2d 313]

claim, we must first determine whether a different verdict would have been reasonable and, if so, we “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; see People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ).

As to the January 2010 incident, the People were required to establish that, “[w]ith intent to cause physical injury to another person, [defendant] cause[d] such injury ... by means of a ... dangerous instrument” (Penal Law § 120.05 [2] ). The victim testified that, in addition to hitting her with his fists, defendant kicked her in the side while wearing Timberland boots. She described the boots, which she had bought for him, in her testimony. A neighbor testified that she heard the victim's screams, saw her attempting to escape from her apartment while defendant tried to pull her back in, and then saw defendant flee down a stairway. The victim then complained that her ribs hurt, and showed the neighbor bruising on her side. A police officer who responded to the neighbor's 911 call testified that the victim said that she had been kicked and her abdomen and ribs were painful. The following day the victim was treated at an emergency room and diagnosed with a fractured rib. She testified that she was “very, very sore” for two to three weeks thereafter and took prescribed medication for the pain.

We reject defendant's argument that the weight of the evidence failed to establish that he used a “dangerous instrument” (Penal Law § 10.00 [13] ). It is well settled that boots may constitute dangerous instruments when used to kick a victim ( see e.g. People v. Carter, 53 N.Y.2d 113, 116–117, 440 N.Y.S.2d 607, 423 N.E.2d 30 [1981]; People v. Hines, 39 A.D.3d 968, 969, 833 N.Y.S.2d 721 [2007], lv. denied 9 N.Y.3d 876, 842 N.Y.S.2d 788, 874 N.E.2d 755 [2007] ). The victim's testimony that defendant wore boots was uncorroborated, but also unrefuted; the investigating officer testified that he did not see defendant and did not ask the victim about defendant's footwear, and the neighbor testified that she did not notice defendant's footwear, but that he was otherwise fully clothed in trousers and a leather jacket as he fled from the building ( compare People v. Bidwell, 153 A.D.2d 960, 961, 545 N.Y.S.2d 402 [1989] ). The victim's history of mental illness did not render her testimony incredible as a matter of law ( see People v. Blair, 32 A.D.3d 613, 614, 819 N.Y.S.2d 626 [2006] ).² Granting the requisite deference to County Court's credibility...