People v. Simcoe
| Citation | 75 A.D.3d 1107,904 N.Y.S.2d 622 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Thomas B. SIMCOE, Defendant-Appellant. |
| Decision Date | 02 July 2010 |
| Court | New York Supreme Court Appellate Division |
David J. Farrugia, Public Defender, Lockport (Mary-Jean Bowman of Counsel), for Defendant-Appellant.
Thomas B. Simcoe, Defendant-Appellant pro se.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND GREEN, JJ.
On appeal from a judgment convicting him following a nonjury trial of, inter alia, attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), for beating and choking his wife, and attempted murder in the first degree (§§ 110.00, 125.27[1] [a], [b] ), for attempting to stab a police officer who responded to a 911 call from defendant's son, defendant contends that the verdict on those two counts is against the weight of the evidence. Viewing the evidence in light of the elements of those counts in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Although a finding that defendant did not intend to kill the victims would not have been unreasonable ( see generally id.), it cannot be said that County Court, which saw and heard the witnesses and thus was able to " 'assess their credibility and reliability in a manner that is far superior to that of reviewing judges who must rely on the printed record,' " failed to give the evidence the weight it should be accorded ( People v. Harris, 72 A.D.3d 1492, 1492, 899 N.Y.S.2d 519). We note that the intent of defendant to kill the victims may be inferred from his actions ( see People v. Broadnax, 52 A.D.3d 1306, 1307, 861 N.Y.S.2d 875, lv. denied 11 N.Y.3d 830, 868 N.Y.S.2d 604, 897 N.E.2d 1088; People v. Switzer, 15 A.D.3d 913, 914, 788 N.Y.S.2d 760, lv. denied 5 N.Y.3d 770, 801 N.Y.S.2d 264, 834 N.E.2d 1274). Those actions included choking his wife with a rope to the point of rendering her unconscious and fracturing her skull by repeatedly smashing her head on the hardwood floor, and then stabbing the responding police officer three times in the upper torso area. The fact that the officer was protected from injury by a bulletproof vest does not in any way negate defendant's intent to kill the officer, inasmuch as defendant did not know that the officer was so protected. We further note that, after smashing his wife's head on the floor and biting off a portion of his wife's lower lip, defendant yelled to his son, "come downstairs and see what I did to your mother." In addition, defendant refused toallow the police to enter the house despite the fact that his wife was unconscious and struggling to breathe, thus further jeopardizing her life. Although defendant testified that he did not intend to kill either victim, the court was free to reject that self-serving testimony( see generally Harris, 72 A.D.3d at 1492, 899 N.Y.S.2d 519).
Contrary to the further contention of defendant, he was not denied effective assistance of counsel. Defendant failed "to demonstrate the absence of strategic or other legitimate explanations" for defense counsel's failure to conduct an inquiry into the...
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... ... We note that, "[a]lthough defendant testified that he did not intend to kill [the] victim, the [jury] was free to reject that self-serving testimony" (People v. Simcoe, 75 A.D.3d 1107, 1109, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 ).Defendant further contends that Supreme Court erred in denying his Batson objection to the prosecutor's use of peremptory challenges to exclude two AfricanAmerican prospective jurors. Defendant ... ...
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People v. White
...responsibility for his or her actions is a factor upon which the court may rely in imposing sentence (see e.g. People v. Simcoe, 75 A.D.3d 1107, 1109, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 ), and indeed the court in the case before us specifically note......
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People v. Smith
... ... Simcoe, 75 A.D.3d 1107, 11081109, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817). The jury see[s] and hear[s] the witnesses[ and thus] can assess their credibility and reliability in a manner that is far superior to that of [this Court, which] must rely on the printed ... ...
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People v. Vangorden
... ... Cabassa, 79 N.Y.2d 722, 728, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563 ), and we reject defendant's further contention that the verdict is against the weight of the evidence with respect to his intent (see People v. Simcoe, 75 A.D.3d 1107, 11081109, 904 N.Y.S.2d 622, lv. denied 15 N.Y.3d 924, 913 N.Y.S.2d 651, 939 N.E.2d 817 ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We therefore modify the judgment by reducing the conviction under counts one and two to attempted ... ...