THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v JAMES RICHARD, Appellant.
Supreme Court, Appellate Division, Third Department, New York
June 15, 2006
817 NYS2d 698
After learning that defendant was sexually involved with codefendant Shameeka Lewis, the victim created and distributed a flyer stating that defendant had AIDS. When defendant arrived at an aрartment where the victim was visiting friends, the victim locked herself in a room. Defendant kicked the door open and threatened the victim with bodily harm while brandishing a knife. He then called friends and relatives to the apartment to watch him humiliate the victim. Defendant ordered the victim into a bathtub while he defecated, then permitted a cousin to videotape the victim obeying defendant‘s orders, given while he held the knife and a pistol, to perform humiliating acts with defendant‘s feces.
Defendant discussed his plan to make the victim engage in mouth-to-anus contact with Lewis. He led the victim from the apartment to his vehicle at gunpoint and by pulling her hair, placing her in the back seat between himself and another person. The vehicle, containing defendant, the victim, three other adults and two of defendant‘s minor children, traveled to Lewis‘s apartment. Once there, defendаnt led the victim inside at gunpoint, ordered her to strip naked, fastened her to a pole in the basement with duct tape and stuffed a sock in her mouth. After leaving her alone in the dark basement for approximately 15 minutes, during which time she urinated on herself, defendant returned with several individuals, including Lеwis. Lewis
Defendant, still armed with the pistol, ordered the victim, still naked, to engage in mouth-to-anus contact with Lewis, which she did. The victim was then led into the kitchen and told to lie on her back, where defendant ordered her to engagе in sexual-type conduct with his dog. When she resisted, he put the pistol to her head until she complied with his demands. Throughout this ordeal, the other individuals present took pictures and videotaped the victim; defendant made them rewind the video if anyone mentioned the names of the participants. Finally, while defendant permitted the victim to get dressed, he threatened that if she humiliated him again he would circulate the photographs and video to humiliate her.
After the victim escaped and contacted police, defendant returned to Lewis‘s apartment and advised hеr to clean up the crime scene. Lewis and her roommate gave defendant all of the evidence they could find. He later brought the two women to a motel, telling them that the police were looking for them. Defendant then went to Virginia and Connecticut, where he was apprehended by police. Police located an electric stun gun on Holland and a BB gun, a piece of duct tape, BBs and an air cartridge for a BB gun in Lewis‘s apartment. The photographs, video and pistol were never recovered. Defendant was charged with, and found guilty of, kidnapping in the second degree, assault in the second degree (two counts) and coercion in the first degree (three counts). Following Supreme Court‘s denial of his
The convictions are not аgainst the weight of the evidence. While defendant implies that the jury should have discredited the victim‘s testimony entirely because her videotaped deposition with defense counsel contradicted her trial testimony, the jury was permitted to make its own credibility determinations and believe part or all of a witness‘s testimony. The evidence,
Supreme Court correctly refused to charge a lesser degree of assault regarding the BB gun, but erred in refusing to charge the lesser included offense regarding the stun gun. Becаuse defendant specifically requested that the court charge assault in the third degree as a lesser included offense of each count of assault in the second degree, the court was required to give such charges if any reasonable view of the evidence supported them (see
As to the second prong, the result differs for the two assault chargеs here. The BB gun was a loaded weapon which discharged a shot that was readily capable of producing serious physical injury, making it a deadly weapon (see
The conceded Brady violation did not deprive defendant of а fair trial. When County Court (Herrick, J.) discovered, on the day set for trial, that the People had not disclosed grand jury testimony of one codefendant which the court deemed exculpatory, it postponed the trial for several weeks to permit defendant to locate and interview the codefendant, then plan trial strategy accordingly. To establish deprivation of his fair trial rights, defendant must demonstrate prejudice flowing from the Brady violation (see People v Atkinson, 141 AD2d 921, 923 [1988]). Reversal is not required where the defendant had an opportunity to use the improperly-withheld material (see People v Cortijo, 70 NY2d 868, 870 [1987]). Defendant did not allege at trial, or on appeal, that he could not locate the codefendant or secure his exculpatory testimony. Even if the codefendant were unavailable, defendant could have attempted to introduce his grand jury testimony if it were truly exculpatory and carried sufficient indicia of reliability (compare People v Watson, 14 AD3d 721, 722 [2005], lv denied 4 NY3d 857 [2005]). Because he had an opportunity to cure the Brady violation but made no attempt to use the withheld material, reversal is not required.
Reversal is also not required based on Supreme Court‘s comments during the trial. Although some of the court‘s comments to defense counsel in front of the jury “would better have been left unsaid, the jury was not prevented from arriving at an impartial judgment on the merits” (People v Moulton, 43 NY2d 944, 946 [1978]).
Assuming, without deciding, that the stenographer was required pursuant to
Many of defendant‘s other contentions will not be fully addressed because they are unpreserved for our review. The argument that the merger doctrine precludes the kidnapping conviction was not raised until his postverdict
Defendant‘s sentence was proper. His argument that the sentence exceeds the aggregate maximum pursuant to
Spain, J. (concurring in part and dissenting in part). I concur with all aspects of the majority‘s decision except that part which affirms defendant‘s conviction of assault in the second degree as charged in count two of the indictment. Because I believe that what we know generically as a BB gun is not a deadly weapon as statutorily defined and, further, that a reasonable view of the evidence could support a finding that the handgun described throughout the record as a “BB gun” was not used as a dangerous instrument, I would hold that defendant was entitled to a charge on the lesser included offense of assault in the third degree.
Defendant was charged with intentionally causing injury to the victim “by means of a deadly weapon or a dangerous instrument” (
As the majority points out, some precedent exists for the proposition that an “air pistol” is a deadly weapon (see People v Jones, 54 AD2d 740, 740 [1976]; see also People v Madeo, 103 AD2d 901, 902 n [1984] [citing with approval, in dicta, People v Jones, supra]). The record in this case is insufficient for us to identify with particularity the exact nature of the weapon used by defendant, but it is consistently described as a “BB gun” and precedent exists which suggests that a BB gun is not a deadly weapon (see People v Bowman, 133 AD2d 701 [1987], lv denied 70 NY2d 953 [1988]). In my view, the type of pump-action “BB gun” formerly marketed for use by children is not a “deadly weapon” as defined by the Penal Law but could, under the correct circumstances, be a “dangerous instrument.”
Thus, although I believe thаt legally sufficient evidence exists to support defendant‘s conviction of assault in the second degree because a factfinder could reasonably conclude that a BB gun shot at point blank range toward a bound individual facing the shooter is an instrument “which, under the circumstancеs in which it is used . . . is readily capable of causing . . . serious physical injury” (
Ordered that the judgment is modified, on the law, by reversing defendant‘s conviction of assault in the second degree under count three of the indictment; matter remitted to the Supreme Court for a new trial on said count; and, as so modified, affirmed.