People v. Serrano

• Decision Date: 16 December 2021
• Docket Number: 112587
• Citation: 200 A.D.3d 1340,158 N.Y.S.3d 389
• Parties: The PEOPLE of the State of New York, Respondent, v. Luis SERRANO, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1340
158 N.Y.S.3d 389

The PEOPLE of the State of New York, Respondent,
v.
Luis SERRANO, Appellant.

112587

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

Calendar Date: October 19, 2021
Decided and Entered: December 16, 2021

158 N.Y.S.3d 392

Steven M. Sharp, Albany, for appellant.

P. David Soares, District Attorney, Albany (Peter H. Willis of counsel), for respondent.

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

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered May 17, 2019, upon a verdict convicting defendant of the crimes of assault in the first degree, criminal possession of a weapon in the third degree and criminal mischief in the fourth degree.

In July 2018, based upon allegations that he threw a piece of asphalt through the window of a car in which the victim was sitting, thereby shattering the glass and striking the victim in the head, defendant was charged with attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the third degree and criminal mischief in the fourth degree. After defendant unsuccessfully moved to suppress statements that he made to police, as well as two pretrial identifications of him from a photo array, the matter proceeded to a jury trial. Defendant was ultimately convicted of assault in the first degree, criminal possession of a weapon in the third degree and criminal mischief in the fourth degree.¹ He was thereafter sentenced, as a second felony offender, to a prison term of 15 years, followed by five years of postrelease supervision, for his conviction of assault in the first degree, and to lesser concurrent prison terms on his remaining convictions. Defendant appeals.

We affirm. Defendant challenges his conviction of assault in the first degree as unsupported by legally sufficient evidence and the entire verdict as against the weight of the evidence. Initially, defendant's legal sufficiency challenge is preserved only to the extent that he argues that the People failed to prove that he intended to cause serious physical injury to the victim and that he in fact caused such serious physical injury (see People v. Iovino, 149 A.D.3d 1350, 1351, 54 N.Y.S.3d 171 [2017], lv denied 30 N.Y.3d 950, 67 N.Y.S.3d 134, 89 N.E.3d 524 [2017] ; People v. Thiel, 134 A.D.3d 1237, 1238, 21 N.Y.S.3d 745 [2015], lv denied

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27 N.Y.3d 1156, 39 N.Y.S.3d 389, 62 N.E.3d 129 [2016] ).² Nevertheless, as part of our weight of the evidence review, we necessarily assess whether each element of assault in the first degree, as charged in the indictment, was proven beyond a reasonable doubt (see People v. Gray, 151 A.D.3d 1470, 1472, 57 N.Y.S.3d 561 [2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017], cert denied ––– U.S. ––––, 138 S. Ct. 1295, 200 L.Ed.2d 483 [2018] ; People v. Iovino, 149 A.D.3d at 1351, 54 N.Y.S.3d 171 ).

In assessing a challenge to the legal sufficiency of the evidence, this Court views the evidence in the light most favorable to the People and evaluates "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. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal citation omitted]; see People v. Abussalam, 196 A.D.3d 1000, 1004, 151 N.Y.S.3d 743 [2021] ; People v. Terry, 196 A.D.3d 840, 841, 149 N.Y.S.3d 705 [2021], lvs denied 37 N.Y.3d 1027, 1030, 153 N.Y.S.3d 411, 432, 175 N.E.3d 436, 457 [2021]). To determine whether a verdict is against the weight of the evidence, this Court "must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony" ( People v. Terry, 196 A.D.3d at 841, 149 N.Y.S.3d 705 [internal quotation marks and citations omitted]; see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Abussalam, 196 A.D.3d at 1004, 151 N.Y.S.3d 743 ).

For a conviction of assault in the first degree, the People bear the burden of proving, as relevant here, that, "[w]ith intent to cause serious physical injury to another person," the defendant "cause[d] 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] ). Serious physical injury means impairment of a person's physical condition "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" ( Penal Law § 10.00[10] ; see Penal Law § 10.00[9] ). For a conviction of criminal possession of a weapon in the third degree, the People must prove that the defendant was previously convicted of a crime and that he or she has committed the offense of criminal possession of a weapon in the fourth degree (see Penal Law § 265.02[1] ), which requires proof that the defendant knowingly possessed a dangerous or deadly instrument or weapon with intent to use it unlawfully against another (see Penal Law §§ 15.05[2] ; 265.01[2]; People v. Saunders, 85 N.Y.2d 339, 341–342, 624 N.Y.S.2d 568, 648 N.E.2d 1331 [1995] ; People v. Vandenburg, 189 A.D.3d 1772, 1773, 136 N.Y.S.3d 549 [2020], lv denied 36 N.Y.3d 1054, 140 N.Y.S.3d 873, 164 N.E.3d 960 [2021] ). Further, for a conviction of criminal mischief

158 N.Y.S.3d 394

in the fourth degree, the People must prove that the defendant, "having no right to do so nor any reasonable ground to believe he or she has such right, ... [i]ntentionally damages property of another person" ( Penal Law § 145.00[1] ). With respect to the charges of assault in the first degree and criminal possession of a weapon in the third degree, a dangerous instrument "means any instrument ... which, under the circumstances in which it is used, ... is readily capable of causing death or other serious physical injury" ( Penal Law § 10.00[13] ). "In determining whether a particular item [may be considered a dangerous instrument], the manner in which the item was used is of paramount consideration, in recognition that an object which is innocuous when used for its proper purpose may become dangerous when used to cause injury" ( People v. Ray, 273 A.D.2d 611, 613, 710 N.Y.S.2d 138 [2000] [citations omitted]; see People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30 [1981] ).

The victim testified that, on the evening in question, he was parked on a street in the City of Schenectady, Schenectady County when he heard a knock on the vehicle's window and saw defendant, whom he later identified in a photo array, standing outside with an object in his hand. The victim testified that, based upon a past incident where he stole drugs and money from a delivery that he had made on defendant's behalf and defendant's threatening conduct toward him since, he became nervous and turned to unbuckle his seat belt and exit the car. The victim testified, however, that the next thing he remembers was waking up in the hospital "in really bad pain."³

To establish the events leading up to the victim's hospitalization, the People relied upon testimony from a father and son who witnessed the incident (hereinafter referred to as the older eyewitness and the younger eyewitness, respectively), a 911 dispatcher, the police officer who responded to the 911 call and two detectives involved in the investigation, as well as documentary evidence and certain inculpatory statements made by defendant following the incident. Specifically, the older eyewitness testified that, on the night in question, he observed an individual wearing dark clothing approach the driver side door of the vehicle and that, within seconds, he heard a loud noise and glass shattering. He stated that the younger eyewitness was arriving home at the time of the incident and that he thereafter called 911, relaying his observations as well as those of the younger eyewitness. The older eyewitness asserted that, upon prompting from the 911 dispatcher, he looked inside the vehicle and "[s]aw the victim slumped over in the passenger seat with blood coming out from behind his ear." The younger eyewitness similarly testified that, as he was driving down the road, about 100 feet away from the victim's vehicle, he heard a loud noise and saw the glass of the driver side window shatter. The younger eyewitness stated that he observed an individual, whom he later identified in a photo array as defendant, beside the shattered car window and saw that individual run past him. The younger eyewitness testified to looking inside the vehicle and thinking that the victim was dead because he saw "a pretty good wound behind [the victim's] ear," with "some meat hanging out." A recording of the 911 call was received into evidence and played for the jury during the dispatcher's testimony.

158 N.Y.S.3d 395

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