People v. HiltonPeople v. Hilton
Aarons, J.
Appeal from a judgment of the Supreme Court (Milano, J.), rendered December 2, 2016 in Schenectady County, upon a verdict convicting defendant of the crimes of assault on a рolice officer, assault in the second degree, strangulation in the second degree and resisting arrest and the violation of disorderly conduct.
In August 2015, a City of Schenectady police officer (hereinаfter the victim) observed defendant, who was drunk, in the middle of the street holding an orange traffic cone and speaking through it as though it was a bull horn. The victim inquired about the cone and was subsequently reassured by defendant‘s friеnds that the cone would be returned to its original location. The victim, however, saw defendant later still holding the traffic cone. The victim stopped defendant, asked him for identification and, after defendant rеfused, the victim told defendant that he would need to be detained. While in the process of being detained, defendant assaulted the victim. Defendant then ran away, and the victim was taken to the hospital where he was treated for his injuries. Police officers subsequently found defendant hiding in a dumpster. Defendant was driven to the hospital where the victim identified him as the assailant. In connection with this incident, defendant was charged by indiсtment with assault on a police officer, assault in the second degree, strangulation in the second degree, disorderly conduct and resisting arrest. Upon defendant‘s motion to suppress identification evidеnce, a Wade hearing was held before a Judicial Hearing Officer, after which Supreme Court adopted the
Defendаnt‘s argument that the evidence was not legally sufficient to support his conviction is unpreserved for review given that he failed to renew his motion to dismiss at the close of all proof (see People v Lane, 7 NY3d 888, 889 [2006]; People v Miranda, 163 AD3d 1168, 1169 [2018]; People v Ash, 162 AD3d 1318, 1318 [2018], lv denied 32 NY3d 1002 [2018]). Defendant, however, also argues that the convictions for assault on a police officer, assault in the second degree and strangulation in the second degree were against the weight of the evidence. In view of this assertion, we necessarily review the evidence adduced regarding each element of these specifically challenged crimes (see People v Spencer, 152 AD3d 863, 863 [2017], lv denied 30 NY3d 983 [2017]; People v Pigford, 148 AD3d 1299, 1300 [2017], lv denied 29 NY3d 1085 [2017]). “Where, as here, it would have been reasonable for the faсtfinder to reach a different conclusion, then we must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Williams, 138 AD3d 1233, 1234 [2016] [internal quotation marks, brackets and citations omitted], lvs denied 28 NY3d 932, 939 [2016]; see People v Myers, 163 AD3d 1152, 1153 [2018]; People v Williams, 156 AD3d 1224, 1225-1226 [2017], lv denied 31 NY3d 1018 [2018]).
Regarding the charge of strangulation in the second degree, a physician testified at trial that the bruising suffered by the victim on his neck was “more linear in nature” and opined that it was consistent with pressure being applied to the carotid artery. The physician further stated that, with enough pressure to the carotid artery, a person could lose consciousness within 5 to 10 seconds. The victim testified that the bruise on his neck came “from a carotid hold, or a blood choke” being applied to him by defendant while he was on his stomach and defendant was on his back and that such hold affected his consciousness. Although defendant testified that he never performed a blood choke hold on the victim, the jury was entitled to reject his account of the incident at issue (see People v Valcarcel, 160 AD3d 1034, 1037 [2018], lvs denied 31 NY3d 1081, 1088 [2018]). Based upon the foregoing and the photographs аdmitted into evidence, we conclude that the strangulation conviction was not against the weight of the evidence (see People v Ryder, 146 AD3d 1022, 1025 [2017], lv denied 29 NY3d 1086 [2017]; People v Cox, 129 AD3d 1210, 1212 [2015], lv denied 26 NY3d 966 [2015]).
Regarding his argument that the convictions for assault on a police officer and assault in the second degree were against the weight of the evidence, defendant challenges the proof as to the element of serious physical injury. Serious physical injury is defined as a “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” (
Defendant claims that count 5 of the indictment charging him with resisting arrest was rendered duplicitous by testimony adduced at trial. We agree. “Even if a count facially charges one criminal act, that count is duplicitous if the evidence makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reaсhed its verdict” (People v Dalton, 27 AD3d 779, 781 [2006], lv denied 7 NY3d 754 [2006]). The indictment charged defendant with one count of resisting arrest. According to the record evidence, however, the jury was presented with two instances where defendant resisted an officer‘s arrest — one involving the victim that turned violent and the other involving the officers who discovered him in the dumpster. We also note that, during deliberation, the jury asked whether it could consider the incident at the dumpster with respеct to the resisting arrest charge or solely defendant‘s encounter with the victim. In our view, Supreme Court‘s response in rereading count 5 of the indictment failed to dispel any confusion by the jury (compare People v Miller, 112 AD3d 1061, 1063 [2013], lv denied 23 NY3d 1040 [2014]). Although this argument is unpreservеd for review, we take corrective action in the interest of justice by dismissing count 5 of the indictment with leave to the People to re-present any appropriate charges to a new grand jury (see
We rеject defendant‘s argument that Supreme Court erred in adopting the Judicial Hearing Officer‘s Wade hearing report recommending the denial of defendant‘s motion to suppress. Contrary to defendant‘s assertion, the showup identification was reasonable given its geographic and temporal proximity to the crime (see People v Gilley, 163 AD3d 1156, 1158 [2018]; People v Bellamy, 118 AD3d 1113, 1116 [2014], lv denied 25 NY3d 1159 [2015]; People v August, 33 AD3d 1046, 1048 [2006], lv denied 8 NY3d 878 [2007]; see generally People v Brisco, 99 NY2d 596, 597 [2003]). The evidence from the Wade hearing reveals that, after defendant was apprehended, he was driven approximately onе hour later to the hospital parking lot in a police car. The victim, who was approximately 10 feet from the police car, immediately identified defendant when the rear door was opened. Additionally, the fact that defendant was handcuffed and in the rear seat of a police vehicle when the victim identified him did not render the showup identification unduly suggestive as a matter of law (see People v Brown, 46 AD3d 1128, 1129-1130 [2007]; People v Armstrong, 11 AD3d 721, 722 [2004], lv denied 4 NY3d 760 [2005]).
We are unpersuaded by defendant‘s claim that Supreme Court erred in permitting the People to submit evidence of defendant‘s background as a mixed martial arts fighter (see People v Scott, 47 AD3d 1016, 1020-1021 [2008], lv denied 10 NY3d 870 [2008]). Supreme Court found, among other things, that such evidence was “aрpropriate and probative” on the serious physical injury element of assault in the second degree and the element of impeding the normal breathing of another person for strangulation in the seсond degree. Furthermore, we reject
Nor do we find that defendant was deprived of meaningful representation. Defendant‘s dissatisfaction with defense counsel stems mainly from a disagreement with trial strategies. Defendant, however, did not demonstrate the absence of strategic or legitimate explanations for the claimed inadequacies (see People v Wright, 160 AD3d 1110, 1112 [2018], lv denied 31 NY3d 1154 [2018]). Moreover, notwithstanding defense counsel‘s failure to lodge certain objections, our review of the record discloses that defense counsel sought to preclude evidence of the pretrial identification, made opening and closing statements, cross-examined the People‘s witnesses and called witnesses in support of defendant‘s defense. Accordingly, defendant did not receive the ineffective assistance of counsel (see People v Ackerman, 141 AD3d 948, 950-951 [2016], lv denied 28 NY3d 1181 [2017]; People v Bowman, 139 AD3d 1251, 1252-1253 [2016], lv denied 28 NY3d 927 [2016]; People v Abare, 86 AD3d 803, 806 [2011], lv denied 19 NY3d 861 [2012]).
Defendant failed to preserve his contention that Supreme Court erred in its Molineux ruling (see People v Cayea, 163 AD3d 1279, 1280 [2018]). Defendant‘s argument that Supreme Court‘s Molineux charge was erroneous is likewise unpreserved given that he did not object to the charge as given (see People v Gomez, 138 AD3d 1017, 1018 [2016], lv denied 27 NY3d 1151 [2016]; People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]). Even if defendant had preserved his claims with respect to the Molineux ruling and charge, they are without merit. Defendant‘s challenge to the remarks made by thе prosecutor during opening and closing statements is unpreserved in the absence of a timely objection thereto (see People v Gunn, 144 AD3d 1193, 1195 [2016], lv denied 28 NY3d 1145 [2017]; People v Richard, 30 AD3d 750, 755 [2006], lv denied 7 NY3d 869 [2006]). In any event, the challenged comments, even if erroneous, did not deprive defendant of a fair trial (see People v Wheeler, 159 AD3d 1138, 1143 [2018], lv denied 31 NY3d 1123 [2018]). Defendant‘s remaining contentions have been considered and lack merit.
Garry, P.J., McCarthy, Lynch and Rumsey, JJ., concur.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reversing defendant‘s conviction of resisting arrеst under count 5 of the indictment; said count dismissed and the sentence imposed thereon vacated, with leave to the People to re-present any appropriate related charges to a new grand jury; and, as so modified, affirmed.