People v. Peasley
| Citation | 208 A.D.3d 1466,174 N.Y.S.3d 497 |
| Decision Date | 15 September 2022 |
| Docket Number | 111075, 112900 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Eric PEASLEY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
208 A.D.3d 1466
174 N.Y.S.3d 497
The PEOPLE of the State of New York, Respondent,
v.
Eric PEASLEY, Appellant.
111075, 112900
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: August 17, 2022
Decided and Entered: September 15, 2022
Lucas G. Mihuta, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Kerianne Morrissey of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and McShan, JJ.
MEMORANDUM AND ORDER
McShan, J.
Appeals (1) from a judgment of the County Court of Clinton County (William A. Favreau, J.), rendered September 20, 2018, upon a verdict convicting defendant of the crimes of aggravated criminal contempt and strangulation in the second degree, and (2) by permission, from an order of said court, entered July 1, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate that part of the judgment convicting defendant of the crime of strangulation in the second degree, without a hearing.
In February 2018, defendant was charged by indictment with, among other things, burglary in the second degree, aggravated criminal contempt and strangulation in the second degree.1 The charges stemmed from allegations that defendant, in violation of an order of protection, entered the premises where the victim was located and engaged in an altercation with her, during which he strangled her and caused her to suffer a physical injury.
Following a jury trial, defendant was convicted of aggravated criminal contempt and strangulation in the second degree but acquitted on the burglary count. He was sentenced, as a second felony offender, to a prison term of 3 to 6 years on the aggravated criminal contempt conviction, and to a prison term of four years, to be followed by five years of postrelease supervision, on the strangulation in the second degree conviction. The sentences were set to run concurrently to one another, but consecutively to a prior, separate sentence that he was serving in connection with an unrelated March 2015 conviction for driving while intoxicated as a felony.2 County Court also imposed $5,000 in fines.
Defendant subsequently moved to vacate that part of the judgment convicting him of strangulation in the second degree asserting that newly discovered evidence in the form of an affidavit by the victim was disclosed after entry of the judgment of conviction that would have resulted in a more favorable verdict (see CPL 440.10[1][g], [h] ). County Court denied the motion without a hearing, finding, in pertinent part, that the victim's affidavit erroneously attempted to bifurcate the altercation that led to the strangulation into two discrete events with separate injuries, and that the victim's statements attempting to clarify the extent of injuries to her neck constituted recantation evidence that
was insufficient to set aside the conviction or warrant a hearing. Defendant appeals from the judgment of conviction and, by permission, from the denial of his CPL article 440 motion.
We turn first to defendant's contention that his conviction of strangulation in the second degree is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. "In reviewing legal sufficiency, this Court must 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. Watkins, 180 A.D.3d 1222, 1223–1224, 120 N.Y.S.3d 500 [3d Dept. 2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 1030, 126 N.Y.S.3d 25, 149 N.E.3d 863 [2020] ; accord People v. Harris, 206 A.D.3d 1454, 1455, 170 N.Y.S.3d 393 [3d Dept. 2022] ; see
People v. Khalil, 206 A.D.3d 1300, 1302, 170 N.Y.S.3d 658 [3d Dept. 2022] ). "In contrast, when undertaking a weight of the evidence review, this Court must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then, if not, 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" ( People v. Colter, 206 A.D.3d 1371, 1373, 170 N.Y.S.3d 665 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]; see People v. Sweet, 200 A.D.3d 1315, 1316, 157 N.Y.S.3d 636 [3d Dept. 2021], lv denied 38 N.Y.3d 930, 164 N.Y.S.3d 13, 184 N.E.3d 834 [2022] ). "A weight of the evidence review further requires us to ‘consider the evidence in a neutral light and defer to the jury's credibility assessments’ " ( People v. Machia, 206 A.D.3d 1272, 1273, 170 N.Y.S.3d 643 [3d Dept. 2022], quoting People v. Brisman, 200 A.D.3d 1219, 1219, 157 N.Y.S.3d 599 [3d Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 687, 181 N.E.3d 1115 [2022] ).
Defendant does not contend that his actions were legally insufficient to support a conviction of criminal obstruction of breathing or blood circulation. Rather, defendant asserts that the trial evidence failed to establish beyond a reasonable doubt that his actions caused the victim to suffer physical injuries or impairment from his obstructive act, which elevated the offense to strangulation in the second degree. As relevant here, "[a] person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she ... applies pressure on the throat or neck of such person[,] or ... blocks the nose or mouth of such person," regardless of whether injury results ( Penal Law § 121.11 ; see People v. Carte, 113 A.D.3d 191, 193, 976 N.Y.S.2d 594 [3d Dept. 2013], lv denied 23 N.Y.3d 1035, 993 N.Y.S.2d 248, 17 N.E.3d 503 [2014] ). In turn, "[a] person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in [ Penal Law § 121.11 ], and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment" ( Penal Law § 121.12 ; see People v. Pietoso, 168 A.D.3d 1276, 1277, 92 N.Y.S.3d 455 [3d Dept. 2019], lv denied 33 N.Y.3d 1034, 102 N.Y.S.3d 526, 126 N.E.3d 176 [2019] ;
People v. Haardt, 129 A.D.3d 1322, 1323, 11 N.Y.S.3d 727 [3d Dept. 2015] ).3 Physical injury includes the "impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ). "Substantial pain
... must be more than slight or trivial but need not be severe or intense" ( People v. Johnson, 150 A.D.3d 1390, 1392, 53 N.Y.S.3d 412 [3d Dept. 2017] [internal quotation marks and citations omitted], lv denied 29 N.Y.3d 1128, 64 N.Y.S.3d 678, 86 N.E.3d 570 [2017] ; see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; People v. Whiten, 187 A.D.3d 1661, 1661, 132 N.Y.S.3d 503 [4th Dept. 2020] ), and the determination of whether pain is substantial considers "the objective nature of the injury, the victim's subjective experience and whether the victim sought medical treatment" ( People v. Parker, 127 A.D.3d 1425, 1427, 6 N.Y.S.3d 801 [3d Dept. 2015] [internal quotation marks and citations omitted]; see People v. Chiddick, 8 N.Y.3d at 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ).
The trial testimony established that the victim and defendant had dated for two years prior to the altercation, at which time defendant was prohibited from communicating with her pursuant to an order of protection. On the day of the altercation, the victim was in the backyard of her sister's home when defendant entered without permission. The victim observed that defendant was inebriated and asked him to leave. Defendant initially obliged that request, only to return several minutes later with a bottle of champagne, proposing that he and the victim celebrate their anniversary. The victim told defendant that he should stop drinking, took the bottle from his hands and threw it across the yard. Angered by the victim's response, defendant grabbed her and threw her to the ground face down. Defendant then sat on top of her, put his hands on the back of her neck, pulled the back of her shirt over her face and "pulled up on [her] neck" which caused her to briefly lose her ability to breath. After a brief struggle, defendant momentarily paused his attack, which provided an opportunity for the victim to free herself, run into her sister's home and contact the police.
The victim testified that, as a result of the altercation, she sustained a broken pinky finger and damage to the cartilage in her nose that caused her pain for weeks. She also suffered bruising on her arms and neck, the latter of which resulted in "significant" pain resembling "whiplash" that lasted a couple of days. The victim sought treatment at an emergency room the following day, where she "got a splint for [her] pinky" and was prescribed over-the-counter pain relievers. One of the police officers that had responded to the altercation testified that the victim had recounted to him that, during the argument, defendant "grabbed her by [the] neck" and "threw her to the ground, at which point she had landed on her stomach" and then "lifted her shirt ... over her neck and began squeezing it to the point where she was...
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