People v. Rahaman

• Decision Date: 03 December 2020
• Docket Number: 112022
• Parties: The PEOPLE of the State of New York, Respondent, v. Cendno RAHAMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1709

136 N.Y.S.3d 192

The PEOPLE of the State of New York, Respondent,

v.Cendno RAHAMAN, Appellant.

112022

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

Calendar Date: October 13, 2020

Decided and Entered: December 3, 2020

Steven M. Sharp, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Aarons, J.

While the victim was out late with his girlfriend and his friend one night in August 2018, they encountered defendant and became involved in a verbal altercation. The verbal altercation subsequently escalated to a physical one. Defendant swung a knife at the girlfriend and the friend, but he missed striking them. Defendant, however, stabbed the victim in the head and wrist. Defendant was thereafter charged with multiple crimes in connection with this incident. Following a jury trial, defendant was convicted of three counts of attempted assault in the first degree (counts 1, 2 and 4), assault in the second degree (count 6), attempted murder in the second degree (count 5) and tampering with physical evidence (count 7). County Court sentenced defendant to a term of imprisonment followed by a period of postrelease supervision. Defendant appeals.

Defendant argues that the verdict convicting him of attempted murder in the second degree, the three counts of attempted assault in the first degree and tampering with physical evidence was not based upon legally sufficient evidence or, in the alternative, was against the weight of the evidence. To the extent that defendant directs his legal sufficiency argument at the three counts of attempted assault in the first degree, he failed to preserve it because he only made a general motion to dismiss with respect to these specific counts (see People v. Splunge, 159 A.D.3d 1136, 1136, 71 N.Y.S.3d 750 [2018] ; People v. Stacconi, 151 A.D.3d 1395, 1396, 58 N.Y.S.3d 201 [2017] ). Although defendant did make a specific motion as to the counts of attempted murder in the second degree and tampering with physical evidence, he failed to renew his motion at the close of all proof. Accordingly, defendant's legal sufficiency argument is also unpreserved as to these counts (see People v. Sloley, 179 A.D.3d 1308, 1309 n. 2, 117 N.Y.S.3d 373 [2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 38, 148 N.E.3d 502 [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] ), and we decline defendant's request to exercise our interest of justice jurisdiction (see People v. Lucas, 25 A.D.3d 822, 823, 806 N.Y.S.2d 798 [2006], lv denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006] ).

Regarding defendant's weight of the evidence claim, where, as here, a contrary result 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 to determine if the verdict is supported by the weight of the evidence" ( People v. Wilson, 164 A.D.3d 1012, 1014, 83 N.Y.S.3d 705 [2018] ; see People v. Mamadou, 172 A.D.3d 1524, 1524, 100 N.Y.S.3d 423 [2019], lv denied 33 N.Y.3d 1106, 106 N.Y.S.3d 670, 130 N.E.3d 1280 [2019] ; People v. Arhin, 165 A.D.3d 1487, 1488, 85 N.Y.S.3d 631 [2018] ). When undertaking a weight of the evidence analysis, we view the evidence in a neutral light and defer to the jury's assessment of the credibility of the witnesses (see People v. Benjamin, 183 A.D.3d 1125, 1128, 123 N.Y.S.3d 770 [2020] ; People v. Gill, 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392 [2019] ). That said, defendant premises his weight of the evidence claim on the basis that the proof failed to show that he possessed the requisite intent to commit the challenged crimes. "Criminal intent may be inferred from the totality of the circumstances or from the natural and probable consequences of the defendant's conduct" ( People v. Conway, 179 A.D.3d 1218, 1219, 116 N.Y.S.3d 118 [2020] [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ; see People v. Pine, 126 A.D.3d 1112, 1114, 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] ).

As to the conviction for attempted murder in the second degree, the trial evidence establishes that, after the victim tripped and fell while trying to run away from defendant, defendant got on top of him with a knife. According to the victim, defendant began "stabbing and swing[ing] at [his] head" with the knife. This attack did not stop even after the victim's friend hit defendant on the head with a bottle. The victim stated that he was "fighting for [his] life" but was eventually able to escape. The victim was "bleeding a lot" and he was treated at the hospital for his injuries. A surgeon testified that the victim had "active bleeding" from one of the head lacerations that required the blood vessel to be tied off. The surgeon further explained that if the blood vessel was not tied off, it would continue to bleed to the point where the victim could go into shock. Although defendant contends that the victim's injuries were minor, "[t]he absence of a long-term serious injury to a victim does not preclude the finding of life-threatening actions by a defendant" ( People v. Ryder, 146 A.D.3d 1022, 1024, 44 N.Y.S.3d 598 [2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ). Viewing the testimonial evidence, as well as the videos and photographs, in a neutral light, the conviction for attempted murder in second degree was supported by the weight of the evidence (see Penal Law §§ 110.00, 125.25[1] ; People v. Greenfield, 167 A.D.3d 1060, 1062, 89 N.Y.S.3d 461 [2018], lv denied 32 N.Y.3d 1204, 99 N.Y.S.3d 245, 122 N.E.3d 1157 [2019] ; People v. Salce, 124 A.D.3d 923, 925–926, 1 N.Y.S.3d 417 [2015], lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] ).

The convictions for the three counts of attempted assault in the first degree likewise were not against the weight of the evidence (see Penal Law §§ 110.00, 120.10[1] ; People v. Gill, 168 A.D.3d at 1142, 90 N.Y.S.3d 392 ; People v. Andrews, 78 A.D.3d 1229, 1230–1231, 911 N.Y.S.2d 221 [2010], lv denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011] ). In addition to the foregoing proof with respect to the attack on the victim, the record discloses that defendant swung the knife at the friend's midsection. The friend stated that defendant "took a good swing" at him and that defendant came within three inches of striking him. The record also discloses that defendant chased the girlfriend and swung the knife at her while she was cornered in a vestibule area of a bar. The girlfriend stated that the knife came "[v]ery close" to her head. Taking into account that intent may be inferred by the manner in which defendant used the knife (see People v. Lewis, 46 A.D.3d 943, 945, 846 N.Y.S.2d 766 [2007] ), defendant's argument with respect to the convictions for these three counts is without merit.

Regarding the conviction for tampering with physical evidence, the record indicates that defendant, as he fled the scene, threw the knife below street level in a dark vestibule and that it was eventually discovered with the aid of a flashlight. Viewing the evidence in a neutral light and the conflicting inferences that may be drawn therefrom, we cannot say that the conviction for tampering with physical evidence was against the weight of the evidence (see Penal Law § 215.40[2] ; People v. Maull, 167 A.D.3d 1465, 1466, 90 N.Y.S.3d 412 [2018], lvs denied 33 N.Y.3d 948, 951, 100 N.Y.S.3d 185, 209, 123 N.E.3d 844, 868 [2019]; People v. Neulander, 162 A.D.3d 1763, 1764–1765, 80 N.Y.S.3d 791 [2018], affd 34 N.Y.3d 110, 111 N.Y.S.3d 259, 135 N.E.3d 302 [2019] ; People v. Whitehead, 119 A.D.3d 1080, 1081, 990 N.Y.S.2d 301 [2014], lv denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161 [2014] ).

Defendant maintains that he was extremely intoxicated at the time of the incident at issue and, therefore, he lacked the requisite intent to commit the challenged crimes. There was evidence as to how much alcohol defendant had consumed prior to the altercation, as well as conflicting evidence regarding defendant's level of intoxication at the time of the altercation. The jury heard this evidence and apparently found that defendant's intoxication did not negate the element of intent. Because we see no basis to disturb the jury's finding in this regard, defendant's argument is unpersuasive (see People v. Oshintayo, 163 A.D.3d 1353, 1356–1357, 82 N.Y.S.3d 223 [2018], lv denied 32 N.Y.3d 1006, 86 N.Y.S.3d 765, 111 N.E.3d 1121 [2018] ; People v. Shuler, 100 A.D.3d 1041, 1043, 952 N.Y.S.2d 687 [2012], lv denied 20 N.Y.3d 988, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012] ).

Defendant also argues that the audio portion from the body camera video of the responding police officers should have been excluded as inadmissible hearsay. We disagree. The statements made in the video were not being offered for their truth but to explain what the police officers did and did not do as part of their investigation into the incident at issue (see People v. McCottery, 90 A.D.3d 1323, 1325, 935 N.Y.S.2d 687 [2011], lv denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 [2012] ; People v. Carney, 18 A.D.3d 242, 243, 795 N.Y.S.2d 10 [2005], lv denied 5 N.Y.3d 882, 808 N.Y.S.2d 584, 842 N.E.2d 482 [2005] ). In addition, County Court, on multiple occasions, provided the jury with a limiting instruction (see People v. McCottery, 90 A.D.3d at 1325, 935 N.Y.S.2d 687 ; People v. Davis, 23 A.D.3d 833, 835, 805 N.Y.S.2d 435 [2005], lv denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 [2006] ). Accordingly, reversal is not warranted on this basis (see People v. Gregory, 78 A.D.3d 1246, 1246–1247, ...