People v. Phillip

• Decision Date: 18 January 2001
• Citation: 718 N.Y.S.2d 727,279 AD2d 802
• Parties: (A.D.3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHAWN PHILLIP, Appellant. 11535 : THIRD JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 727

718 N.Y.S.2d 727 (A.D.3 Dept. 2001)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHAWN PHILLIP, Appellant.

11535

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

January 18, 2001

Alan P. Weinraub, Plattsburgh, for appellant.

Penelope D. Clute, District Attorney (Mary Beth Dumont of counsel), Plattsburgh, for respondent.

Before: Mercure, J.P., Peters, Carpinello, Mugglin and Rose, JJ.

Mercure, J.P.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered May 27, 1999, convicting defendant following a nonjury trial of the crimes of assault on a peace officer, assault in the second degree and promoting prison contraband in the first degree.

Defendant's convictions arise out of May 22, 1997 occurrences at Clinton Correctional Facility in Clinton County in which defendant struck Correction Officer Kevin Trombley in the face, causing him to sustain a fractured jaw, and a subsequent search of defendant's cell revealed a razor blade. Following a nonjury trial, County Court found defendant guilty of assault on a peace officer and assault in the second degree in connection with the assault on Trombley, and promoting prison contraband in the first degree based upon the presence of the razor blade in defendant's cell. County Court sentenced defendant to concurrent prison terms of 10 years on the convictions of assault on a peace officer and assault in the second degree and 1 to 3 years on the conviction of promoting prison contraband in the first degree, all to be served consecutively to the sentence that defendant was already serving. Defendant now appeals, primarily contending that County Court's verdict is not supported by legally sufficient evidence or is against the weight of the evidence.

As a preliminary matter, we note that defendant's legal sufficiency and weight of the evidence challenges are both unpreserved and insufficiently articulated to raise a discernible issue for our consideration. Based upon our review of the record, we are nonetheless persuaded to exercise our authority to consider as a matter of discretion in the interest of justice (CPL 470.15 [3] [c]; [6] [a]) whether the trial evidence was legally sufficient to support County Court's implicit finding that defendant caused Trombley serious physical injury, an essential element of the crime of assault on a peace officer (Penal Law § 120.08). Viewing the evidence in a light most favorable to the People (see, People v Allah, 71 NY2d 830, 831), we are unable to discern any "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by [County Court] on the basis of the evidence at trial" (People v Bleakley, 69 NY2d 490, 495). We are therefore constrained to vacate the conviction of the crime of assault on a peace officer and dismiss the first count of the indictment.

The evidence adduced at trial supports a finding that the blow delivered by defendant caused Trombley to sustain a nondisplaced fracture of his left mandible. Trombley testified that the injury caused him to miss six or eight weeks of work and, during the two-month period following the injury, he "couldn't eat any type of solid food * * * basically couldn't talk * * * lived with very little medication and was living with the pain". He slept in a recliner for "a couple weeks" because he had made an agreement that if his oral surgeon did not wire his jaw he would be very careful with it. During the period when Trombley was unable to eat...