People v. Smith

• Decision Date: 29 April 2021
• Docket Number: 109807
• Citation: 147 N.Y.S.3d 221,193 A.D.3d 1260
• Parties: The PEOPLE of the State of New York, Respondent, v. Karim SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1260

147 N.Y.S.3d 221

The PEOPLE of the State of New York, Respondent,

v.Karim SMITH, Appellant.

109807

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

Calendar Date: March 9, 2021

Decided and Entered: April 29, 2021

Angela M. Kelley, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

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

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered September 12, 2017 in Schenectady County, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts), assault in the second degree, reckless endangerment in the second degree and criminal possession of a weapon in the third degree.

Defendant was charged by indictment with criminal possession of a weapon in the second degree (two counts), attempted murder in the second degree, assault in the first degree (two counts) and reckless endangerment in the first degree stemming from a shooting that occurred in the afternoon of August 14, 2016 on Crane Street in the City of Schenectady, Schenectady County. Thereafter, defendant was charged by a separate indictment with criminal possession of a weapon in the third degree, stemming from the same incident. The two indictments were consolidated. Following a jury trial, defendant was convicted of two counts of criminal possession of a weapon in the second degree, one count each of assault in the second degree – as a lesser included offense of the second count of assault in the first degree – reckless endangerment in the second degree – as a lesser included offense of reckless endangerment in the first degree – and criminal possession of a weapon in the third degree. Supreme Court sentenced defendant, as a second felony offender, to concurrent prison terms of 12 years, to be followed by five years of postrelease supervision on each conviction of criminal possession of a weapon in the second degree and to lesser concurrent terms of incarceration on the remaining convictions. Defendant appeals.

Defendant contends that the evidence presented was legally insufficient and the verdict was against the weight of the evidence with respect to his conviction of assault in the second degree because the People failed to prove that the victim suffered a serious physical injury. Initially, defendant's legal sufficiency claim is unpreserved for review given that he failed to renew his motion to dismiss at the close of all proof (see People v. Rahaman, 189 A.D.3d 1709, 1710, 136 N.Y.S.3d 192 [2020], lv denied 36 N.Y.3d 1059, 141 N.Y.S.3d 746, 165 N.E.3d 672 [2021] ; 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] ). "Nevertheless, as part of our weight of the evidence review, we must necessarily determine whether the elements of the charged crimes were proven at trial beyond a reasonable doubt" ( People v. Saunders, 176 A.D.3d 1384, 1385, 111 N.Y.S.3d 445 [2019] [citations omitted], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 12, 148 N.E.3d 476 [2020] ; see People v. Meadows, 183 A.D.3d 1016, 1017, 123 N.Y.S.3d 753 [2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 825, 151 N.E.3d 506 [2020] ). "Where, as here, a different outcome 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" ( People v. Marshall, 162 A.D.3d 1110, 1111, 78 N.Y.S.3d 753 [2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 432, 108 N.E.3d 506 [2018] [internal quotation marks and citations omitted]). " ‘Serious physical injury’ means 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" ( Penal Law § 10.00[10] ; see People v. Marshall, 162 A.D.3d 1110, 1113, 78 N.Y.S.3d 753 [2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 432, 108 N.E.3d 506 [2018] ).

At trial, the victim testified that he was with two friends at Chubby's, a convenience store on Crane Street, on the day of the incident. According to the victim, a fight broke out between defendant and James Watkins, one of the victim's friends, and that the victim had "jumped in" to assist Watkins; thereafter, "everybody started running" and, as the victim was running away, he was shot in the back of his right leg.¹ The victim asserted that the bullet entered through the back of the leg just below the kneecap and exited through the front of the leg just above the kneecap. The victim stated that after he was shot, he went to a friend's house for about 20 minutes before he was picked up and driven to the home of Watkin's girlfriend. The victim described the injury as a "burning sensation" and ranked his pain level at 5 to 6 out of 10. He testified that Watkins gave him some pain pills that helped the pain. The victim also described the blood as "trickling" from the wound. Because of the pain pills, the victim could not estimate the amount of time that he spent at Watkins' girlfriend's house; at some point, he called his girlfriend and she took him back to her house until the police arrived. The victim also stated that the police took him to the hospital, where he was treated for two days before being discharged on crutches. The victim testified that he was on crutches for several months and then used a cane for several months more. The victim stated that he occasionally still has pain in his leg, for which he takes medication, and he has two circular scars from the bullet that are "[a]bout the size of a penny." As to whether he sustained any lasting nerve damage, the victim testified that his doctors had indicated that "it would take six months to a year for [his] leg to get fully healed." The victim did not participate in any physical therapy for his injury.

We agree with defendant that the verdict as to his conviction for assault in the second degree was against the weight of the evidence because "the evidence does not support a finding that the victim sustained a serious physical injury" ( People v. Marshall, 162 A.D.3d at 1113, 78 N.Y.S.3d 753 ; see Penal Law § 120.05[4] ; People v. Tucker, 91 A.D.3d 1030, 1031–1032, 936 N.Y.S.2d 386 [2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ). "Although the victim's injuries are by no means trivial, they fall short of constituting injuries that create a substantial risk of death. There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim's injuries caused a substantial risk of death or were life threatening" ( People v. Marshall, 162 A.D.3d at 1113, 78 N.Y.S.3d 753 [citations omitted]; see People v. Alvarez, 38 A.D.3d 930, 934, 830 N.Y.S.2d 848 [2007], lv denied 8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007] ). Similarly, the evidence failed to show "that the victim suffered from a protracted impairment of health or protracted loss or impairment of the function of a bodily organ" ( People v. Marshall, 162 A.D.3d at 1113, 78 N.Y.S.3d 753 ; see People v. Stewart, 18 N.Y.3d 831, 832, 939 N.Y.S.2d 273, 962 N.E.2d 764 [2011] ). Although there was testimony regarding the long-term effects of the gunshot wound, no corresponding medical documentation was submitted as proof of the link between the impairment and the initial injury (see People v. Stewart, 18 N.Y.3d at 832, 939 N.Y.S.2d 273, 962 N.E.2d 764 ; People v. Tucker, 91 A.D.3d at 1032, 936 N.Y.S.2d 386 ; compare People v. Rice, 90 A.D.3d 1237, 1238, 935 N.Y.S.2d 169 [2011] ).² Further, although the victim testified that he had two circular scars from the bullet, this testimony alone is not sufficient to support a finding of serious disfigurement (see People v. Marshall, 162 A.D.3d at 1114, 78 N.Y.S.3d 753 ; People v. McKinnon, 15 N.Y.3d 311, 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 [2010] ). To prove that the victim's scars were a serious disfigurement would have required the People to make a record of it, via either a photograph or a detailed description; here, however, the testimony establishes "no more than that the victim had two scars" ( People v. McKinnon, 15 N.Y.3d at 316, 910 N.Y.S.2d 767, 937 N.E.2d 524 [2010] ).

Although the evidence "falls short of satisfying the statutory definition of serious ‘physical injury’ " ( People v. Phillip, 279 A.D.2d 802, 803, 718 N.Y.S.2d 727 [2001], lv denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91 [2001] ; see People v. Ham, 67 A.D.3d 1038, 1040, 889 N.Y.S.2d 110 [2009] ), there is no dispute that the victim sustained a "physical injury" ( Penal Law § 10.00[9] ). Therefore, we reduce defendant's conviction of assault in the second degree under count 6 of the indictment to the lesser included offense of assault in the third degree, vacate the sentence imposed on said conviction and remit the matter to Supreme Court for resentencing thereon (see Penal Law § 120.00[2] ; People v. Trombley, 97 A.D.3d 903, 903–904, 947 N.Y.S.2d 686 [2012] ; cf. People v. Harris, 186 A.D.3d 907, 912, 127 N.Y.S.3d 655 [2020] ).

Defendant next asserts that County Court (Eidens, J.H.O.) erred in denying his motion to suppress his statements made to police because the detective who questioned him engaged in improper interrogation prior to administering Miranda warnings. At a Huntley hearing, the People have "the burden of proving beyond a reasonable doubt that [the] defendant's statement[s] to police [were] voluntarily given" and that "any custodial interrogation was preceded by the administration and [the] defendant's knowing waiver of his [or her] Miranda rights" ( People v. Steigler, 152 A.D.3d 1083, 1083, 59 N.Y.S.3d 814 [2017] [internal quotation marks and...