Opinion
865 KA 17–00560
09-27-2019
The PEOPLE of the State of New York, Respondent, v. Gregory C. DINANT, Jr., Defendant–Appellant.
THEODORE W. STENUF, MINOA, FOR DEFENDANT–APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
THEODORE W. STENUF, MINOA, FOR DEFENDANT–APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, assault in the second degree ( Penal Law § 120.05[4] ), assault in the third degree (§ 120.00[2] ), criminal mischief in the third degree (§ 145.05[2] ), and criminal possession of a weapon in the fourth degree (§ 265.01[2] ) stemming from a "road rage" incident in which defendant, while driving a truck, chased a car and then struck the bumper of that car, sending it careening into a light pole and causing injuries to two passengers of the car. Defendant contends that County Court erred in granting the People's request to submit reckless assault in the second degree ( § 120.05[4] ) and reckless assault in the third degree (§ 120.00[2] ) to the jury as lesser included offenses of intentional assault in the first degree (§ 120.10[1] ) and intentional assault in the second degree ( § 120.05[2] ) related to the two injured passengers of the car. As a preliminary matter, we note that defendant's challenge to the submission of the charge of assault in the third degree is not preserved for our review inasmuch as defendant did not object to the submission of that lesser included offense (see People v. Clark, 161 A.D.2d 1181, 1181, 555 N.Y.S.2d 971 [4th Dept. 1990], lv denied 76 N.Y.2d 786, 559 N.Y.S.2d 991, 559 N.E.2d 685 [1990] ; People v. Dunbar, 145 A.D.2d 501, 502, 535 N.Y.S.2d 438 [2d Dept. 1988] ; cf. People v. Ford, 62 N.Y.2d 275, 282–283, 476 N.Y.S.2d 783, 465 N.E.2d 322 [1984] ). In any event, defendant's contention lacks merit. The charges submitted by the court qualify as lesser included offenses of the respective charges in the indictment (see People v. Leonardo, 89 A.D.2d 214, 217, 455 N.Y.S.2d 434 [4th Dept. 1982], affd 60 N.Y.2d 683, 468 N.Y.S.2d 466, 455 N.E.2d 1261 [1983] ; People v. Williams, 212 A.D.2d 1065, 1065, 623 N.Y.S.2d 31 [4th Dept. 1995], lv denied 85 N.Y.2d 916, 627 N.Y.S.2d 339, 650 N.E.2d 1341 [1995] ), and there is a reasonable view of the evidence that would support a finding that defendant did not intentionally cause the injuries but, rather, recklessly caused the injuries (see Penal Law §§ 120.00[2] ; 120.05[4]; see generally CPL 1.20[37] ; 300.50[1]; People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ). Contrary to defendant's contention, the submission to the jury of those lesser included offenses did not improperly change the theory of the case (see People v. Siler, 135 A.D.3d 453, 454, 21 N.Y.S.3d 893 [1st Dept. 2016], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ; cf. People v. Russell, 147 A.D.2d 280, 281–282, 543 N.Y.S.2d 54 [1st Dept. 1989] ).
Defendant's further contention that the court erred in purportedly submitting criminal mischief in the third degree ( Penal Law § 145.05[2] ) and criminal possession of a weapon in the fourth degree (§ 265.01[2] ) as lesser included offenses of criminal mischief in the second degree (§ 145.10) and criminal possession of a weapon in the third degree (§ 265.02[1] ) is unpreserved (see generally People v. Green, 35 A.D.3d 1211, 1212, 825 N.Y.S.2d 891 [4th Dept. 2006], lv denied 8 N.Y.3d 985, 838 N.Y.S.2d 488, 869 N.E.2d 664 [2007] ) and, in any event, lacks merit. Before trial, the court reduced the greater counts of criminal mischief and criminal possession of a weapon to the lesser offenses due to certain insufficiencies in the grand jury proof, and the jury was instructed on only those reduced offenses.
Although defendant raises challenges to the prosecutor's summation and contends that the verdict was inconsistent, those contentions are not preserved for our review (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 [1994] ; People v. Rivera, 133 A.D.3d 1255, 1256, 18 N.Y.S.3d 813 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ; People v. Edwards, 129 A.D.3d 1499, 1500, 10 N.Y.S.3d 379 [4th Dept. 2015], lv denied 27 N.Y.3d 964, 36 N.Y.S.3d 625, 56 N.E.3d 905 [2016] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
With respect to the sentence, defendant contends that he was penalized for asserting his right to trial and that a 5% surcharge was improperly imposed. Those contentions are not preserved for our review (see People v. Huddleston, 160 A.D.3d 1359, 1362, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ; People v. Kirkland, 105 A.D.3d 1337, 1338, 963 N.Y.S.2d 793 [4th Dept. 2013], lv denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 [2013] ) and, in any event, lack merit (see People v. Garner, 136 A.D.3d 1374, 1374–1375, 25 N.Y.S.3d 758 [4th Dept. 2016], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ; Kirkland, 105 A.D.3d at 1338, 963 N.Y.S.2d 793 ). Finally, we conclude that the sentence is not unduly harsh or severe.