People v. Marshall

• Decision Date: 07 June 2018
• Docket Number: 108316
• Citation: 162 A.D.3d 1110,78 N.Y.S.3d 753
• Parties: The PEOPLE of the State of New York, Respondent, v. James D. MARSHALL, Appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1110

78 N.Y.S.3d 753

The PEOPLE of the State of New York, Respondent,

v.James D. MARSHALL, Appellant.

108316

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

Calendar Date: March 29, 2018

Decided and Entered: June 7, 2018

Paul J. Connolly, Delmar, for appellant.

Matthew VanHouten, District Attorney, Ithaca (Andrew J. Bonavia of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the County Court of Tompkins County (Miller, J.), rendered March 10, 2016, upon a verdict convicting defendant of the crimes of assault in the first degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree.

In June 2015, defendant was involved in an altercation with the victim and shot him in the leg. In connection with this incident, defendant was charged by indictment with one count of assault in the first degree, two counts of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree. Following a jury trial, defendant was convicted as charged. County Court sentenced defendant, as a second violent felony offender, to an aggregate prison term of 13 years, to be followed by five years of postrelease supervision. Defendant appeals.

We reject defendant's contention that the indictment should have been dismissed because the grand jury proceedings were defective. "[G]rand jury proceedings enjoy a presumption of regularity which is the challenger's burden to overcome" ( People v. Nash, 69 A.D.3d 1113, 1114, 891 N.Y.S.2d 763 [2010], lv denied 15 N.Y.3d 754, 906 N.Y.S.2d 827, 933 N.E.2d 226 [2010] ; see generally People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996] ). Other than a conclusory assertion, defendant does not elaborate on this point or specify any particular defect in the grand jury proceedings. Defendant therefore failed to show that the indictment should have been dismissed on this ground. In any event, our review of the grand jury minutes discloses no defect.

Defendant failed to preserve his argument that the evidence was not legally sufficient to support the verdict in light of his failure to renew his trial motion to dismiss at the close of all proof (see People v. Jackson, 151 A.D.3d 1466, 1468, 58 N.Y.S.3d 218 [2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ; People v. Brown, 139 A.D.3d 1178, 1178, 31 N.Y.S.3d 308 [2016] ). Defendant, however, also assails the verdict as being against the weight of the evidence and, therefore, we review the evidence as to each element of the crimes for which he was convicted (see People v. Place, 152 A.D.3d 976, 977, 59 N.Y.S.3d 187 [2017], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ; People v. Brabham, 126 A.D.3d 1040, 1041, 4 N.Y.S.3d 386 [2015], lv denied 25 N.Y.3d 1160, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ). Where, as here, a different outcome would not have been unreasonable, we "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 citations omitted]; see People v. Gabriel, 155 A.D.3d 1438, 1439, 66 N.Y.S.3d 359 [2017] ).

At trial, the victim testified that he went to his ex-girlfriend's apartment but she did not let him inside. The victim called the ex-girlfriend on his cell phone and asked if someone else was with her, to which the ex-girlfriend responded in the negative. They continued to talk, and the ex-girlfriend reiterated that no one else was in her apartment. The ex-girlfriend testified that defendant was actually with her but she knew there would be a problem if the victim was aware of defendant's presence. The victim then got a butter knife and tried to pry the window open. The victim was unsuccessful and asked the ex-girlfriend to come out, but she refused. The victim remained outside the apartment for about two hours and the ex-girlfriend did not want defendant to leave because she knew the victim would fight him.

The victim testified that, later, defendant and his ex-girlfriend came out of the apartment. The victim stated that defendant had his hand in his jacket as though he was holding something. According to the victim, defendant "smirked" at him and moved. The victim then "just hit him." After doing so, the victim saw that defendant had a gun. They continued to fight and the victim then realized that he was shot in the leg. The ex-girlfriend stated that the victim kept saying, "Oh, you shot me. Oh, you shot me." The victim was able to pin defendant on the ground and the victim and the ex-girlfriend both testified that, at this point, defendant was holding a gun. The victim then let him off the ground and defendant ran away. The victim was bleeding and he explained to the police officers who had subsequently arrived what had happened.

Regarding the conviction for assault in the first degree, defendant questions the proof with respect to the element of intent. Upon reviewing the evidence in a neutral light, however, the jury could infer from the evidence that defendant possessed the requisite intent to cause serious physical injury to the victim (see Penal Law § 120.10[1] ; People v. Madore, 145 A.D.3d 1440, 1442, 46 N.Y.S.3d 300 [2016], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017] ; People v. Mathews, 134 A.D.3d 1248, 1250, 21 N.Y.S.3d 465 [2015] ; People v. Malcolm, 74 A.D.3d 1483, 1484–1485, 902 N.Y.S.2d 264 [2010], lv denied 15 N.Y.3d 954, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ). Furthermore, the jury was entitled to reject defendant's testimony that the victim held the gun in his hand and was inadvertently shot during their fight (see People v. Gibson, 141 A.D.3d 1009, 1012, 35 N.Y.S.3d 806 [2016] ; People v. Morrison, 71 A.D.3d 1228, 1229–1230, 896 N.Y.S.2d 253 [2010], lvs denied 15 N.Y.3d 747, 754, 906 N.Y.S.2d 820, 827, 933 N.E.2d 219, 226 [2010]; People v. Moore, 277 A.D.2d 596, 597, 715 N.Y.S.2d 546 [2000], lv denied 96 N.Y.2d 761, 725 N.Y.S.2d 288, 748 N.E.2d 1084 [2001] ).

Notwithstanding the foregoing, we agree with defendant that the weight of the evidence does not support a finding that the victim sustained a serious physical injury. Serious physical injury is defined as a "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" ( Penal Law § 10.00[10] ). As to whether the victim sustained a physical injury that created a substantial risk of death, the victim testified that, following the shooting, he was in "miraculous pain," he underwent two surgeries, his tibia bone was "shattered" and pins were inserted to hold the bones in place. The pins, however, were removed four months after their insertion, at which point the pain subsided. The victim then wore a cast on his leg for 1½ months. Although the victim's injuries are by no means trivial, they fall short of constituting injuries that create a substantial risk of death. There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim's injuries caused a substantial risk of death or were life threatening (see People v. Alvarez, 38 A.D.3d 930, 934–935, 830 N.Y.S.2d 848 [2007], lv denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007] ; People v. Sleasman, 24 A.D.3d 1041, 1042–1043, 805 N.Y.S.2d 736 [2005] ; cf. People v. Daniels, 97 A.D.3d 845, 847, 948 N.Y.S.2d 431 [2012], lv denied 20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ; People v. Nimmons, 95 A.D.3d 1360, 1360–1361, 945 N.Y.S.2d 358 [2012], lv denied 19 N.Y.3d 1028, 953 N.Y.S.2d 561, 978 N.E.2d 113 [2012] ; People v. Tucker, 91 A.D.3d 1030, 1031–1032, 936 N.Y.S.2d 386 [2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ; People v. Ham, 67 A.D.3d 1038, 1039–1040, 889 N.Y.S.2d 110 [2009] ; People v. Gray, 30 A.D.3d 771, 772–773, 816 N.Y.S.2d 609 [2006], lv denied 7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006] ; People v. Horton, 9 A.D.3d 503, 504–505, 780 N.Y.S.2d 654 [2004], lv denied 3 N.Y.3d 707, 785 N.Y.S.2d 35, 818 N.E.2d 677 [2004] ; compare People v. McCloud, 121 A.D.3d 1286, 1288, 995 N.Y.S.2d 269 [2014], lv denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015] ; People v. Casey, 61 A.D.3d 1011, 1013, 876 N.Y.S.2d 532 [2009], lv denied 12 N.Y.3d 913, 884 N.Y.S.2d 694, 912 N.E.2d 1075 [2009] ).

The record evidence also does not support a finding that the victim suffered from a protracted impairment of health or protracted loss or impairment of the function of a bodily organ (see People v. Stewart, 18 N.Y.3d 831, 832–833, 939 N.Y.S.2d 273, 962 N.E.2d 764 [2011] ; People v. Alvarez, 38 A.D.3d at 934–935, 830 N.Y.S.2d 848 ; cf. People v. Gray, 30 A.D.3d at 772–773, 816 N.Y.S.2d 609 ; People v. Phillip, 279 A.D.2d 802, 803–804, 718 N.Y.S.2d 727 [2001], lv denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91 [2001] ; compare People v. Ford, 156 A.D.3d 1242, 1244–1245, 68 N.Y.S.3d 566 [2017], lv denied 31 N.Y.3d 1013, 78 N.Y.S.3d 283, 102 N.E.3d 1064, 2018 WL 2169707 [Apr. 26, 2018] ; People v. Heyliger, 126 A.D.3d 1117, 1119, 5 N.Y.S.3d 566 [2015], lv denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; People v. Khuong Dinh Pham, 31 A.D.3d 962, 965–966, 818 N.Y.S.2d 674 [2006] ). By the time of trial, which was less than six months after the shooting, the victim stated that he had "a little limp," but was nonetheless able to walk. The victim was also undergoing "rehab" but he did not state for how long. When asked whether he could continue to play arena football,...