People v. Wilder

• Decision Date: 16 December 2021
• Docket Number: 109953
• Parties: The PEOPLE of the State of New York, Respondent, v. Titus T. WILDER, Also Known as Primo, Appellant.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1303
158 N.Y.S.3d 422

The PEOPLE of the State of New York, Respondent,
v.
Titus T. WILDER, Also Known as Primo, Appellant.

109953

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

Calendar Date: October 22, 2021
Decided and Entered: December 16, 2021

158 N.Y.S.3d 423

Allen E. Stone Jr., Vestal, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

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

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered October 10, 2017, upon a verdict convicting defendant of the crimes of attempted assault in the second degree and assault in the third degree.

In December 2015, based upon allegations that he, among other things, punched, kicked and stomped on the victim, defendant was charged by indictment with one count of attempted assault in the first degree, one count of assault in the second degree and three counts of intimidating a victim or witness in the third degree. Following motion practice, a four-day jury trial ensued, after which defendant was found guilty of the lesser included

158 N.Y.S.3d 424

offenses of attempted assault in the second degree and assault in the third degree.¹ Defendant was thereafter sentenced, as a second felony offender, to a prison term of 2 to 4 years on his conviction of attempted assault in the second degree and to a lesser concurrent term of incarceration on the assault in the third degree conviction. Defendant appeals, solely arguing that the verdict was against the weight of the evidence.

In assessing whether a verdict is supported by the weight of the evidence, we must first determine whether, based upon all of the credible evidence, a different finding would have been unreasonable; if not, we must then "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" to determine whether the jury gave "the evidence the weight it should be accorded" ( People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] [internal quotation marks and citations omitted]; see People v. Young, 160 A.D.3d 1206, 1206–1207, 75 N.Y.S.3d 645 [2018], lv denied 31 N.Y.3d 1155, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ). In conducting a weight of the evidence review, we view the evidence in a neutral light (see People v. Sanchez, 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ; People v. Dancy, 87 A.D.3d 759, 761, 928 N.Y.S.2d 143 [2011] ). However, we also accord "[g]reat deference" to the jury's credibility determinations, given that the jurors have the "opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see People v. Romero, 7 N.Y.3d at 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

As relevant here, to sustain the conviction for attempted assault in the second degree, the People were required to prove that defendant intended to cause physical injury to the victim by means of a dangerous instrument and that he "engage[d] in conduct which tend[ed] to effect the commission of such crime" ( Penal Law § 110.00 ; see Penal Law § 120.05[2] ; cf. People v. Agron, 106 A.D.3d 1126, 1128, 964 N.Y.S.2d 694 [2013], lv denied 21 N.Y.3d 1013, 971 N.Y.S.2d 495, 994 N.E.2d 391 [2013] ). As for assault in the third degree, the People had to prove that, "[w]ith intent to cause physical injury to another person, [defendant] cause[d] such injury to such person" ( Penal Law § 120.00[1] ). " ‘Physical injury’ means impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ). Finally, given defendant's invocation of the ordinary defense of justification, the People bore the burden of proving beyond a reasonable doubt that defendant was not justified in his actions (see Penal Law § 25.00[1] ) – that is, as relevant here, that he did not reasonably believe that using physical force against the victim was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by such person (see Penal Law § 35.15[1] ).

At trial, the victim testified that he and defendant had a friend in common (hereinafter the mutual friend) and that, on the night in question, he went to the mutual friend's house to look...