People v. McCabe

• Decision Date: 16 April 2020
• Docket Number: 108335
• Citation: 182 A.D.3d 772,122 N.Y.S.3d 757
• Parties: The PEOPLE of the State of New York, Respondent, v. Chauncey R. MCCABE, Appellant.
• Court: New York Supreme Court — Appellate Division

182 A.D.3d 772
122 N.Y.S.3d 757

The PEOPLE of the State of New York, Respondent,
v.
Chauncey R. MCCABE, Appellant.

108335

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

Calendar Date: February 10, 2020
Decided and Entered: April 16, 2020

Robert M. Cohen, Ballston Lake, for appellant.

Chad W. Brown, District Attorney, Johnstown (Kathleen M. Hofmann of counsel), for respondent.

Before: Lynch, J.P., Clark, Devine, Pritzker and ReynoldsFitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

182 A.D.3d 772

Defendant was charged by indictment with attempted murder in the second degree, assault in the first degree, strangulation in the first degree and criminal possession of a weapon in the fourth degree based upon allegations that he strangled his girlfriend (hereinafter the victim) on August 9, 2014. After a jury trial, defendant was acquitted of attempted murder in the second degree and convicted of the remaining charges. County Court sentenced defendant to a prison term of 15 years, with five years of postrelease supervision, for his assault conviction and his strangulation conviction and to a term of one year for his criminal possession conviction, all sentences to run concurrently. Defendant appeals.

Defendant contends that his convictions for assault in the first degree and strangulation in the first degree were not supported by legally sufficient evidence and were against the weight of evidence as the People failed to prove the requisite intent necessary for both crimes. "When considering a challenge

182 A.D.3d 773

to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Hernandez, 180 A.D.3d 1234, 1235, 116 N.Y.S.3d 799 [2020] [internal quotation marks and citations omitted] ). In contrast, "[w]hen undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence. When conducting this review, we consider the evidence in a neutral light and defer to the jury's credibility assessments" ( People v. Gill, 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] [internal quotation marks and citations omitted]; see People v. Vega, 170 A.D.3d 1266, 1268, 95 N.Y.S.3d 620 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 48, 129 N.E.3d 368 [2019] ).

122 N.Y.S.3d 760

As relevant here, to convict defendant of assault in the first degree, it was the People's burden to prove that defendant, "[w]ith intent to cause serious physical injury to another person, cause[d] such injury ... by means of a deadly weapon or a dangerous instrument" ( Penal Law § 120.10[1] ). A " ‘[d]angerous instrument’ means any instrument, article or substance ... which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury" ( Penal Law § 10.00[13] ). As to strangulation in the first degree, the People had to prove that defendant intended "to impede the normal breathing or circulation of the blood of another person [by applying] pressure on the throat or neck of such person" and "thereby causing serious physical injury to such person" ( Penal Law §§ 121.11, 121.13 ). " ‘Serious physical injury’ means 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 a bodily organ" ( Penal Law § 10.00[10] ).

The relevant testimony adduced at trial reflected that when Lucas Nellis, a police officer, arrived at the scene, defendant was seated in the driveway of the residence. When defendant saw Nellis, he told him, "I take full responsibility for what I've done." When the officer entered the residence, he found the

182 A.D.3d 774

victim lying on the floor with blood on her face, bruising on the right side, convulsing and making a gurgling sound. A senior investigator testified that she collected evidence at the scene, including a rope on the couch and rope fibers around the room. She further testified that defendant had scratches on his right forearm and lacerations on the inside of his right arm. The emergency physician who treated the victim testified that the victim had what appeared to be rope marks around her neck. The surgeon who treated her testified both to her numerous broken bones and the "strangulation type" abrasions. The People also introduced proof that defendant had sent a...