People v. Rojas

• Decision Date: 30 October 2014
• Citation: 121 A.D.3d 1427,2014 N.Y. Slip Op. 07384,995 N.Y.S.2d 392
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph A. ROJAS, Appellant.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 1427

995 N.Y.S.2d 392

2014 N.Y. Slip Op. 07384

The PEOPLE of the State of New York, Respondent,

v.Joseph A. ROJAS, Appellant.

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

Oct. 30, 2014

Affirmed. Battisti & Garzo, P.C., Binghamton (F. Paul Battisti of counsel), for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Rita Basile of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY, ROSE and DEVINE, JJ.McCARTHY, J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered December 1, 2011, upon a verdict convicting defendant of the crime of assault in the first degree.

In the early morning hours of August 29, 2009, the victim, then a college senior, frequented some downtown bars in the City of Binghamton, Broome County with his friends. At approximately 3:15 a.m., after the bars had closed, the victim had a heated conversation with a young woman and one of her friends on the street and allegedly attempted to strike the woman. Defendant, who is the woman's brother, came from behind the victim and punched him in the head, causing the victim to fall to the pavement. While the victim was lying on the pavement apparently unconscious, defendant raised his leg and stomped his foot on the victim's head, then blended into the crowd. Police officers who were at the scene immediately arrested defendant. In the meantime, the victim was taken to the hospital, where he remained for approximately two weeks, and was treated for an eye laceration, a fractured skull and a significant brain hemorrhage. As a result of this incident, defendant was charged in an indictment with attempted murder in the second degree and assault in the first degree. After a jury trial, defendant was convicted of assault in the first degree and sentenced to 10 years in prison, followed by five years of postrelease supervision. Defendant appeals.

Initially, defendant's legal insufficiency claim is not preserved for review given his failure to specify this as a basis for his motion to dismiss made at the close of the People's proof ( see People v. Finch, 23 N.Y.3d 408, 414, 991 N.Y.S.2d 552, 15 N.E.3d 307 [2014]; People v. Gray, 86 N.Y.2d 10, 18, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]; see also People v. Balram, 47 A.D.3d 1014, 1015, 849 N.Y.S.2d 125 [2008], lv. denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248 [2008] ). Nevertheless, we must evaluate the evidence presented with respect to the elements of the crime in connection with our review of the weight of the evidence, for which no preservation rule applies ( see People v. Rankin, 117 A.D.3d 1231, 1232, 985 N.Y.S.2d 750 [2014]; People v. Johnson, 107 A.D.3d 1161, 1163 n. 2, 967 N.Y.S.2d 217 [2013], lv. denied 21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149 [2013]; People v. Rowe, 105 A.D.3d 1088, 1090 n. 2, 962 N.Y.S.2d 735 [2013], lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 [2013] ). In undertaking a weight of the evidence review, we first must ascertain if a contrary result would not have been unreasonable and, if so, we must then “ weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Davis, 105 A.D.3d 1095, 1096, 962 N.Y.S.2d 739 [2013], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 255, 993 N.E.2d 1277 [2013] ), all while according “ ‘[g]reat deference ... to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor’ ” ( People v. Kancharla, 23 N.Y.3d 294, 303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014], quoting People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; see People v. Davis, 105 A.D.3d at 1096, 962 N.Y.S.2d 739). After engaging in this analysis, “[i]f it appears that the trier of fact has failed to give the evidence the weight it should be accorded,” we may then set the verdict aside ( People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Turning to the crime at issue, “[a] person is guilty of assault in the first degree when[, w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.10[1]; see People v. Rice, 90 A.D.3d 1237, 1237, 935 N.Y.S.2d 169 [2011], lv. denied 18 N.Y.3d 961, 944 N.Y.S.2d 490, 967 N.E.2d 715 [2012] ). Penal Law § 10.00(10) defines serious physical injury as a “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 any bodily organ.” The indictment here alleged that defendant intended to cause and did, in fact, cause serious physical injury to the victim by using his shoes as a dangerous instrument.

At trial, there was testimony from a number of eyewitnesses, including defendant's friend, an owner of a nearby bar and many police officers at the scene, who observed defendant approach the victim from behind and strike him in the head, causing him to fall flat on the pavement. A number of these witnesses further testified, in no uncertain terms, that they saw defendant raise his leg and stomp his foot on the victim's head while he laid there unconscious. Although the witnesses called by the defense disputed that defendant stomped his foot on the victim's head and defendant denied the same, maintaining that he stumbled and tripped over the victim, the conflicting testimony presented a credibility issue to be resolved by the jury ( see People v. Ramirez, 118 A.D.3d 1108, 1111, 987 N.Y.S.2d 496 [2014] ).

Contrary to defendant's claim, there is no proof that the victim's injuries were in any way attributable to a physical altercation that he had with another male just prior to the incident in question. Neither the friend who was with the victim at the time nor the police lieutenant who witnessed it indicated that the victim was struck during that altercation. Consequently, defendant's assertion that the prior incident was a cause of the victim's injuries is pure speculation. Notably, the neurologist who treated the victim testified that the victim's injuries were consistent with having been punched in the head, hitting the pavement, and then being stomped or kicked in the head. Accordingly, the proof establishes that defendant's actions were a sufficiently direct cause of the victim's injuries ( see People v. Griffin, 300 A.D.2d 743, 744, 752 N.Y.S.2d 129 [2002], lv. denied 99 N.Y.2d 614, 757 N.Y.S.2d 825, 787 N.E.2d 1171 [2003]; see also People...