People v. Persen

• Decision Date: 23 July 2020
• Docket Number: 109845
• Citation: 185 A.D.3d 1288,128 N.Y.S.3d 340
• Parties: The PEOPLE of the State of New York, Respondent, v. Cecilio PERSEN, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1288

128 N.Y.S.3d 340

The PEOPLE of the State of New York, Respondent,

v.Cecilio PERSEN, Appellant.

109845

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

Calendar Date: May 22, 2020

Decided and Entered: July 23, 2020

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

Chad W. Brown, District Attorney, Johnstown (Amanda M. Nellis of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Devine and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from a judgment of the County Court of Fulton County (Sira, J.), rendered August 28, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree and menacing in the second degree.

On October 4, 2016, defendant and his son were involved in an altercation with another individual (hereinafter the victim) outside of a police station in the City of Gloversville, Fulton County, during which the victim stabbed defendant's 17–year–old son. Police responded to the incident and, following an exchange between defendant and one of the responding officers, defendant was arrested for disorderly conduct. During a search incident to that arrest, a folding knife was discovered in defendant's front sweatshirt pocket, and defendant thereafter made incriminating statements regarding his possession of the knife. In February 2017, defendant was convicted, upon his plea of guilty, of disorderly conduct (see Penal Law § 240.20[2] ).

Meanwhile, in January 2017, defendant was indicted on charges of criminal possession of a weapon in the third degree, menacing in the second degree and harassment in the second degree, all of which were based on his involvement in the October 2016 incident. Defendant moved to suppress the folding knife discovered during the search incident to his arrest for disorderly conduct, as well as the statements he made to police. County Court denied the motion and the matter thereafter proceeded to a jury trial. Following jury selection, but prior to opening statements, County Court granted the People's motion to dismiss the charge of harassment in the second degree. Defendant was ultimately found guilty of criminal possession of a weapon in the third degree and menacing in the second degree. After unsuccessfully moving to set aside the verdict pursuant to CPL 330.30(1), defendant was sentenced to 1½ to 4½ years in prison for his conviction of criminal possession of a weapon in the third degree and to a concurrent one-year jail term for his conviction of menacing in the second degree. Defendant appeals.

Defendant argues that the jury's verdict was not based upon legally sufficient evidence and that it was also against the weight of the evidence. However, defendant failed to preserve his legal sufficiency challenge, inasmuch as he did not renew his motion for a trial order of dismissal after the presentation of his case (see People v. Stone, 179 A.D.3d 1287, 1288, 117 N.Y.S.3d 364 [2020] ; People v. Hilton, 166 A.D.3d 1316, 1317, 87 N.Y.S.3d 399 [2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 248, 122 N.E.3d 1160 [2019] ). Nevertheless, as part of our weight of the evidence review, we necessarily determine whether the People proved each element of the charged crimes beyond a reasonable doubt (see People v. McCoy, 169 A.D.3d 1260, 1261, 95 N.Y.S.3d 441 [2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ; People v. Hernandez, 165 A.D.3d 1473, 1473, 86 N.Y.S.3d 784 [2018] ). Additionally, where, as here, it would not have been unreasonable for the jury to have reached a different verdict, we must 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 (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Hernandez, 180 A.D.3d 1234, 1235, 116 N.Y.S.3d 799 [2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 630, 149 N.E.3d 391 [2020] ).

As relevant here, a person is guilty of criminal possession of a weapon in the third degree (a class D felony offense) when he or she commits the offense of criminal possession of a weapon in the fourth degree (a class A misdemeanor), and he or she has been previously convicted of any crime (see Penal Law §§ 265.01[2] ; 265.02[1]; People v. Ford, 66 N.Y.2d 428, 440, 497 N.Y.S.2d 637, 488 N.E.2d 458 [1985] ). A person is guilty of criminal possession of a weapon in the fourth degree when he or she knowingly "possesses any ... dangerous knife ... with intent to use the same unlawfully against another" ( Penal Law § 265.01[2] ). A knife may be considered a "dangerous knife," as that term is used in Penal Law § 265.01(2), "when the circumstances of its possession, including the behavior of its possessor, demonstrate that the possessor ... considered it a weapon" ( People v. Jackson, 38 A.D.3d 1052, 1054, 831 N.Y.S.2d 596 [2007] [internal quotation marks and citation omitted], lv denied 8 N.Y.3d 986, 838 N.Y.S.2d 489, 869 N.E.2d 665 [2007] ; accord People v. Pine, 126 A.D.3d 1112, 1116, 4 N.Y.S.3d 746 [2015], lv denied 27 N.Y.3d 1004, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ; see Matter of Jamie D., 59 N.Y.2d 589, 591, 466 N.Y.S.2d 286, 453 N.E.2d 515 [1983] ). The mere possession of a knife, while displayed in a manner to instill fear, is presumptive evidence of an intent to use the knife unlawfully (see People v. Pine, 126 A.D.3d at 1116, 4 N.Y.S.3d 746 ; People v. Taylor, 118 A.D.3d 1044, 1047, 986 N.Y.S.2d 711 [2014], lv denied 23 N.Y.3d 1043, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014] ; People v. Jackson, 38 A.D.3d at 1054, 831 N.Y.S.2d 596 ).

Additionally, a person is guilty of menacing in the second degree, a class A misdemeanor, when "[h]e or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a ... dangerous instrument" ( Penal Law § 120.14[1] ), and when, as charged here, he or she was not justified in doing so (see People v. Padgett, 60 N.Y.2d 142, 144–145, 468 N.Y.S.2d 854, 456 N.E.2d 795 [1983] ; People v. Ellis, 233 A.D.2d 692, 693, 650 N.Y.S.2d 329 [1996] ). A dangerous instrument is "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] ). Finally, a person is justified in "us[ing] 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," provided that, as relevant here, he or she was not the initial aggressor and did not provoke the conduct with intent to cause physical injury to another person ( Penal Law § 35.15[1] ).

The evidence established that defendant was driving a vehicle in which his wife and son were passengers when they encountered a vehicle occupied by the victim and his mother. Although there were conflicting accounts as to the events that followed, including the actions of the individuals in the vehicles and who was following who, the evidence demonstrated that the victim called 911 to report the encounter and that the victim and his mother followed the advice of the 911 dispatcher to drive to a nearby police station. The testimony established that defendant was driving past the police station as the victim and his mother were walking toward the station's entrance and that defendant's son jumped out of the car and initiated a physical altercation with the victim. The victim and his mother, as well as certain eyewitnesses on the scene, testified that defendant took part in the physical assault on the victim, while defendant's wife and son testified that he did not. As established by the testimony, the victim pulled a knife out of his pocket during the altercation and ultimately stabbed defendant's son in the upper back. The son was ultimately airlifted to a hospital, where he was treated for a punctured lung.

Numerous witnesses – namely, the victim, the victim's mother, defendant's son, defendant's wife and several eyewitnesses at the scene – testified that defendant pulled out a knife immediately after the stabbing and chased the victim with it. The victim testified that, as defendant was chasing him, defendant was threatening to kill him, and that defendant threw the knife at him, hitting him in the back. One of the eyewitnesses testified that she did not observe defendant with a knife in real time, but that she later reviewed a picture she had taken of the incident, which was admitted into evidence, and saw what appeared to be an "apparatus in his hand." Defendant's wife and son each testified that defendant's demeanor changed when he saw his son bleeding and struggling to breathe and that he used the knife to try to get the victim away from them.

The People also presented evidence of inculpatory statements made by defendant after the incident. Specifically, a detective sergeant testified that he interviewed defendant after the fact and that defendant admitted to possessing a knife, pulling out that knife and chasing the victim with it. Consistent with the audio/video recording of defendant's police interview, which was admitted into evidence, the detective sergeant testified to defendant's statement that "it wouldn't have been good" if he caught the victim and "remarks ... that he would have stabbed" the victim. Defendant made similar admissions in his written statement to police, which was in question-and-answer form. The folding knife discovered on defendant's person during the search incident to his arrest was admitted into evidence.¹

Defendant presented a justification defense at trial, arguing...