THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v DANIEL P. TAYLOR, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
986 N.Y.S.2d 711
McCarthy, J.
Judgment rendered June 27, 2013
Joseph Fritz picked up dеfendant‘s girlfriend and brought her to a concert at the Northern Lights music hall in the Town of Clifton Park, Saratoga County. Later that evening, defendant arrived there to meet up with his girlfriend. A few hours later, Fritz and defеndant had an altercation in the parking lot, during which defendant‘s pocket knife caused a large laceration
Following a trial, the jury acquitted defendant of assault in the first degree but cоnvicted him of assault in the second degree and criminal possession of a weapon in the fourth degree. County Court denied defendant‘s request to redact portions of the presentеnce investigation report (hereinafter PSI). The court sentenced him to seven years in prison followed by three years of postrelease supervision for the assault conviction аnd a concurrent one-year term of incarceration for the weapon possession conviction. Defendant appeals.*
The assault conviction is supported by legally sufficient evidence and is not against the weight of the evidence. To establish assault in the second degree, thе People had to prove that defendant, “[w]ith intent to cause physical injury to another person, . . . cause[d] such injury to such person . . . by means of . . . a dangerous instrument” (
As to the weight of the evidence, the witnesses presented several versions of the altercation. Fritz testified that defendant appeared irritatеd all night but would not say why. When Fritz followed defendant‘s girlfriend to the parking lot, defendant followed
Defendant testified that Fritz had repeatedly touched him inside the bar, despite defendant asking him not to. Fritz glared at defendant, yelled at him, put his fingers in defendant‘s face and threatened to beat up both defendant and his brother. Defendant walked away. Outside, defendant started to approach his girlfriend, but then decided to give her some space. When he saw Fritz approaсhing her, he headed toward them. Fritz shouted at defendant, calling him names and telling defendant that his relationship with his girlfriend was done. Defendant testified that Fritz shoved him and asked if he wanted to fight. After defendant tоld Fritz to back off, defendant walked away, but Fritz jumped on defendant‘s back and knocked him to the ground. Defendant testified that he was terrified because his shoulder regularly dislocated, causing intense pain and rendering the arm unusable, and he was afraid that he would be unable to defend himself and could be permanently injured. To protect himself, he pushed Fritz off his back with his left arm, opened his рocket knife with his right hand and spun around to show Fritz the knife. At the same time, Fritz lunged at defendant. Defendant did not realize that the knife made contact and, as soon as Fritz backed away, defendant left the scene. When he heard sirens, he panicked and threw his knife in the woods. Defendant testified that he did not stab or thrust the knife, but only meant to scare Fritz away.
Although defendant‘s statements about being рushed down by Fritz are supported by grass and mud stains on his pants and shoes, and scrapes on his wrist and knee, those markings also could have occurred if he knelt down to stab Fritz, which would be consistent with the сabdriver‘s testimony. Defendant
The conviction for criminal possession of a weapon in the fourth degree is based on legally sufficient evidence and is not against the weight of the evidence. As charged to the jury, that count required proof that dеfendant knowingly possessed a dangerous knife with intent to use it unlawfully against another person (see
County Cоurt properly denied defendant‘s request to provide the jury with a charge of justification by means of ordinary physical force. The court did charge the jury regarding self-defense by means of dеadly physical force. Although a court may give both charges if the evidence, viewed in a light most favorable to the defendant, supports them (see People v Powell, 101 AD3d 1369, 1371-1372 [2012], lv denied 21 NY3d 1019 [2013]; People v Ogodor, 207 AD2d 461, 462 [1994]), the charge should be limited to justificatiоn based on deadly physical force “if it may be held, as a matter of law, that the physical force used by the defendant was, in fact, ‘deadly,’ that is, ‘readily capable of causing death or other serious physical injury’ ” (People v Jones, 148 AD2d 547, 549 [1989], quoting
County Court did not abuse its discretion in denying defendant‘s request for an expert witness, as the court found that the subject matter was within the knowledge of typical jurors, who could use their own experienсe, observations and common sense to deduce whether defendant acted in self-defense (see People v Cronin, 60 NY2d 430, 433 [1983]; cf. People v De Sarno, 121 AD2d 651, 654 [1986], lv denied 68 NY2d 769 [1986]). Further, inasmuch as the scope and extent of cross-examination is within the trial court‘s discretion, we do not find that County Court abused its discretion in limiting defendant‘s cross-examination of Fritz, after Fritz had acknowledged his prior convictions, by precluding questions concerning the underlying facts relating to one of those prior crimes (see People v Mothon, 284 AD2d at 570).
While erroneous information should be redacted from a PSI (see People v Freeman, 67 AD3d 1202, 1202 [2009]), County Court did not err in denying redaction and instead ordering that the sentencing minutes аccompany the PSI. The allegedly erroneous portions generally constituted facts that were disputed at trial—such as the part of the PSI that addressed the victim‘s statement and indicatеd that it was Fritz‘s version of events—rather than concrete and indisputable facts. Accordingly, the court did not abuse its discretion in refusing to redact portions of the PSI, but adequately addressed the рroblem by appending the sentencing minutes so that anyone reviewing the PSI in the future would also see defendant‘s arguments regarding the opinions and facts that he challenged (see People v Thomas, 2 AD3d 982, 984 [2003], lv denied 1 NY3d 602 [2004]). Under the cirсumstances, including the injury that defendant inflicted upon Fritz, the sentence was not harsh or excessive.
Peters, P.J., Lahtinen, Garry and Devine, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Saratoga County for further proceedings pursuant to