THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ANTHONY C. HARDEN, Appellant.
134 A.D.3d 1160 | 21 N.Y.S.3d 730
Supreme Court, Appellate Division, Third Department, New York
December 3, 2015
Defendant was previously convicted of several crimes arising out of an altercation in the City of Albany in which three men (hereinafter victim one, victim two and victim three) received knife wounds. Upon defendant‘s prior appeal, this Court reversed the convictions and remitted the matter for a new trial (99 AD3d 1031, 1034 [2012], lv denied 20 NY3d 986 [2012]). Following the second trial, the jury acquitted defendant of all charges involving victim one and convicted him of one count each of assault in the second degree as to victim two and victim three. He was sentenced as a second felony offender to consecutive prison terms of seven years followed by five years of postrelease supervision on the conviction as to victim two, and five years followed by five years of postrelease supervision on the conviction as to victim three. Defendant appeals.
Defendant contends that the evidence was legally insufficient to establish either that he intended to cause physical injury or that he was the aggressor rather than trying to escape from the confrontation. He further asserts that the jury‘s rejection of his justification defense was against the weight of the evidence. Defendant‘s legal sufficiency arguments are unpreserved as they were not specifically addressed in his general trial motion for dismissal (see People v Parker, 127 AD3d 1425, 1426 [2015]). Nevertheless, “our weight of the evidence analysis necessarily involves an evaluation of whether all elements of the charged crimes were proven beyond a reasonable doubt at trial” (People v Pine, 126 AD3d 1112, 1114 [2015] [internal quotation marks, brackets and citations omitted]).
The People‘s witnesses included the three victims, their four friends — victim one‘s wife, another woman and two men — with whom the victims had been walking home from a street festival, and several onlookers. Taken as a whole, their
Upon catching up with victim one and his wife, defendant began to castigate them, and the rest of the group joined the increasingly heated discussion. There was testimony that some of the participants allegedly tried to defuse the confrontation, advising defendant that they did not want to fight and asking him to leave them alone, but defendant was “very aggressive,” “was looking for a fight,” and said “I want it now.” Meanwhile, defendant‘s girlfriend drove her vehicle the wrong way on a one-way street to join them, got out and entered the confrontation, which then quickly erupted into two separate physical fights, one involving the women and the other the men. The People‘s witnesses said that the violence began when defendant‘s girlfriend struck victim one‘s wife, that defendant then struck or shoved the other woman in the group as she tried to help victim one‘s wife, and that when victim one tried to help his wife, defendant struck him, breaking his nose. Defendant allegedly kept punching victim one while the others tried unsuccessfully to pull him off; then defendant and the three victims — and according to some witnesses, the other two men — began exchanging punches. One of the other two men testified that he hung back, watching the fight, and after 15 or 20 seconds saw defendant reach into his waistband, withdraw a knife and stab victim one, who fell to the ground. When victim two “lean[ed] in” to help victim one, defendant stabbed him in the neck. Victim three testified that defendant, who was very close to him, then motioned at him and said, “I live for this s . . . .” Victim three backed away and did not realize until a few moments later that he had been stabbed in the hand and the torso. Several other witnesses stated that they heard defendant utter this phrase; these witnesses included an EMT who had happened upon the scene, who also testified that he saw defendant swinging a knife against three men and that his demeanor was very aggressive.
Defendant and his witnesses offered a different account. Defendant said that he became upset when someone threw dirt into the vehicle during the initial confrontation, which might have struck his young child in the backseat; he stated that he was trying to discuss the incident with victim one when the other four men surrounded him, saying, “I‘m game” and “let‘s party.” Defendant‘s girlfriend said that all five men were surrounding defendant when she joined the altercation, and that she heard one of the men tell defendant that he was “game” just before the fight among the women began, which she claimed was initiated by victim one‘s wife. When that altercation ended, she saw defendant backed up against a car fighting with all five men.
Defendant denied that he initiated the fight among the men, testifying that he did not hit anyone until after someone struck him in the back of the head as he tried to help his girlfriend. He said he then backed up, trying to escape as all five men threw punches at him, and fell to the ground, where the men kneed and kicked him. When he managed to get up, the men pinned him first to one parked car and then to a second car, where one of the men pulled out a knife. Defendant said that he snatched the knife away by its handle, using his left hand, and then started stabbing, testifying that if he had not done so, he would have been killed. When the men backed off, he dropped the knife and fled to his vehicle, explaining that the object visible in his hand in the blurry photograph taken at the scene was not a knife, but his girlfriend‘s flip flops, which he had allegedly retrieved after she lost them.1 He further stated that two of the victims — who, according to other witnesses, were incapacitated by their wounds by this time — chased him to the vehicle. A witness who saw the confrontation from a nearby car supported defendant‘s story in part, testifying that he saw five men fighting with one man who was backed up against a car, and that they were “beating him up pretty bad.” Defendant suffered injuries to his face during the struggle,
Based upon the testimony of defendant‘s witnesses, a different outcome would not have been unreasonable. Nevertheless, upon our review, we find no reason to disturb the jury verdict rejecting defendant‘s justification defense, which applies when conduct that would otherwise have been criminal “is necessary as an emergency measure to avoid an imminent . . . injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor,” and the threatened injury is so grave as to outweigh the harm resulting from the actor‘s conduct (
Defendant‘s intent to cause injury was a factual question that the jury could infer from his conduct and the surrounding circumstances (see People v Francis, 83 AD3d 1119, 1122 [2011], lv denied 17 NY3d 806 [2011]; People v Gonzalez, 64 AD3d 1038, 1041 [2009], lv denied 13 NY3d 796 [2009]). Here, one of the witnesses who saw defendant using the knife testified that he was not just waving it, but was “jabbing” it with a rapid outward movement of his arm, which the witness described as a “jack motion with full intent to strike.” As to defendant‘s claim that the wounds he inflicted were not sufficiently severe as to indicate that he intended to cause injury, witnesses said that after victim two was stabbed in the neck, he was coughing and “choking on his own blood” and that his head “[blew] up like a balloon” to twice its normal size. He was intubated, required emergency surgery and was hospitalized for a week, including two days in intensive care. The thoracic surgeon who treated him testified that the laceration in his clavicle had “completely violated” the front wall of his trachea, or airway, and also caused an abrasion on the trachea‘s back wall, and that these injuries posed a substantial risk of death. Victim three was stabbed in the abdomen and the hand and required surgery to repair a severed extensor tendon. His surgeon testified that he would have lost the ability to use his index finger if the tendon had not been repaired. Victim three testified that
Defendant next contends that Supreme Court‘s jury instruction on justification was erroneous. However, defendant‘s counsel expressly agreed to the instruction during the charge conference and, thereafter, neither objected when the charge was given nor when the jury asked to have it reread during deliberations. Counsel objected to the instruction for the first time only after the court received a note from the jury indicating that it had reached a unanimous verdict. As this objection came too late to permit any error to be corrected, the claim is unpreserved (see
Defendant next contends that Supreme Court erred in failing to poll the jury on the counts as to which he was acquitted. This contention is unpreserved; a jury must be polled upon either party‘s request, but a defendant cannot challenge the manner in which the poll was taken on appeal if he or she failed to call the trial court‘s attention to the alleged deficiency (see
Finally, defendant‘s sentence was not harsh or excessive. The aggregate of the two consecutive terms was shorter than the maximum that defendant could have received as a second felony offender (see
Egan Jr., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.