Opinion
No. 917 KA 21-01358
03-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. TYRELL DOWDELL, DEFENDANT-APPELLANT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT. BRITTANY GROME ANTONACCI, ACTING DISTRICT ATTORNEY, AUBURN (RICHARD S. PADO OF COUNSEL), FOR RESPONDENT.
DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.
BRITTANY GROME ANTONACCI, ACTING DISTRICT ATTORNEY, AUBURN (RICHARD S. PADO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered July 16, 2020. The judgment convicted defendant upon a nonjury verdict of assault in the second degree, promoting prison contraband in the first degree and promoting prison contraband in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of assault in the second degree under count one of the indictment and dismissing that count, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of, inter alia, assault in the second degree (Penal Law § 120.05 [3]) and promoting prison contraband in the first degree (§ 205.25 [2]), arising from an incident wherein defendant, during a routine pat frisk for contraband outside his cell at a state correctional facility, retreated into his cell and attempted to close the sliding steel cell door, which slammed against the arm of a correction officer as he reached into the cell to stop defendant.
Defendant contends that the evidence is legally insufficient to support the conviction with respect to the physical injury element of the crime of assault in the second degree as charged in count one of the indictment. By failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 N.Y.3d 888, 889 [2006]; People v Hines, 97 N.Y.2d 56, 61 [2001], rearg denied 97 N.Y.2d 678 [2001]; People v Douglas, 85 A.D.3d 1585, 1586 [4th Dept 2011]). We nevertheless exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), instead of addressing the same contention, as defendant requests us to do in the alternative, in the context of an analysis of the weight of the evidence (see People v Barrett, 188 A.D.3d 1736, 1737 [4th Dept 2020]; see generally People v Heatley, 116 A.D.3d 23, 28-32 [4th Dept 2014], appeal dismissed 25 N.Y.3d 933 [2015]).
As relevant to the offense at issue, a person is guilty of assault in the second degree when, with intent to prevent a peace officer-which includes a correction officer of a state correctional facility (see CPL 1.20 [33]; 2.10 [25])-from performing a lawful duty, such person causes physical injury to such peace officer (see Penal Law § 120.05 [3]). As limited by the indictment here," '[p]hysical injury' means... substantial pain" (§ 10.00 [9]). Although" 'substantial pain' cannot be defined precisely,... it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial" (People v Chiddick, 8 N.Y.3d 445, 447 [2007]). "Pain is, of course, a subjective matter," but the Court of Appeals has cautioned that "the Legislature did not intend a wholly subjective criterion to govern" (Matter of Philip A., 49 N.Y.2d 198, 200 [1980]; see People v Bunton, 206 A.D.3d 1724, 1725 [4th Dept 2022], lv denied 38 N.Y.3d 1149 [2022]). "Factors relevant to an assessment of substantial pain include the nature of the injury, viewed objectively, the victim's subjective description of the injury and his or her pain, whether the victim sought medical treatment, and the motive of the offender" (People v Haynes, 104 A.D.3d 1142, 1143 [4th Dept 2013], lv denied 22 N.Y.3d 1156 [2014]; see Chiddick, 8 N.Y.3d at 447-448).
Here, viewing the evidence in the light most favorable to the People (see People v Allen, 36 N.Y.3d 1033, 1034 [2021]), we conclude that it is legally insufficient to establish that the correction officer sustained physical injury in the form of substantial pain (see Bunton, 206 A.D.3d at 1725-1726). Although having a sliding steel prison cell door slammed against one's arm may be "an experience that would normally be expected to bring with it more than a little pain" (Chiddick, 8 N.Y.3d at 447; see Haynes, 104 A.D.3d at 1143), the evidence of the injury inflicted here, viewed objectively, established only that the correction officer sustained slight scraping and scratching, perhaps some bruising, minor swelling in the wrist, a small laceration, and abrasions or redness, without any bleeding (see People v Lunetta, 38 A.D.3d 1303, 1304 [4th Dept 2007], lv denied 8 N.Y.3d 987 [2007]; People v Velasquez, 202 A.D.2d 1037, 1038 [4th Dept 1994], lv denied 83 N.Y.2d 1008 [1994], reconsideration denied 84 N.Y.2d 940 [1994]; cf. Chiddick, 8 N.Y.3d at 446-448; People v Guidice, 83 N.Y.2d 630, 636 [1994]). Indeed, although medical staff at the correctional facility purportedly noted bruising on the correction officer's forearm, no bruising is apparent in the photographs taken shortly after the incident, and the photographs otherwise depict only minimal redness on the correction officer's arm and hand, a minuscule nick on the knuckle of his index finger, and a slight scratch along his arm (see Haynes, 104 A.D.3d at 1143; cf. People v Abughanem, 203 A.D.3d 1710, 1713 [4th Dept 2022], lv denied 38 N.Y.3d 1031 [2022]).
The correction officer testified that he reported to the medical area at the correctional facility for the purpose of complying with procedure, not due to any particular physical discomfort. Although he subsequently clarified that he was feeling discomfort and pain in his arm following the incident, he never "testif[ied] with respect to the degree of pain [he] experienced," and the registered nurse at the correctional facility similarly could not recall the type of the pain reported by the correction officer (Lunetta, 38 A.D.3d at 1304; see Philip A., 49 N.Y.2d at 200; People v Zalevsky, 82 A.D.3d 1136, 1137 [2d Dept 2011], lv denied 19 N.Y.3d 978 [2012], reconsideration denied 19 N.Y.3d 1106 [2012]; cf. Guidice, 83 N.Y.2d at 636; People v Talbott, 158 A.D.3d 1053, 1054 [4th Dept 2018], lv denied 31 N.Y.3d 1088 [2018]). Moreover, the only immediate treatment recommended by the registered nurse was for the correction officer to clean the area with soap and water and to apply an antibiotic ointment (see People v Cooney [appeal No. 2], 137 A.D.3d 1665, 1668 [4th Dept 2016], appeal dismissed 28 N.Y.3d 957 [2016]; Matter of Jonathan S., 55 A.D.3d 1324, 1325 [4th Dept 2008]). Relatedly, "there was no testimony that the [correction] officer took any pain medication for the injury" (Bunton, 206 A.D.3d at 1725; see People v Boley, 106 A.D.3d 753, 753-754 [2d Dept 2013]; cf. People v Greene, 70 N.Y.2d 860, 862-863 [1987], rearg denied 70 N.Y.2d 951 [1988]; People v Hill, 164 A.D.3d 1651, 1652 [4th Dept 2018], lv denied 32 N.Y.3d 1126 [2018]; Talbott, 158 A.D.3d at 1054).
Even though the correction officer's failure to take off any time from work is "not dispositive in determining whether he sustained a physical injury, inasmuch as 'pain is subjective and different persons tolerate it differently'" (People v Gerecke, 34 A.D.3d 1260, 1261 [4th Dept 2006], lv denied 7 N.Y.3d 925 [2006], quoting Guidice, 83 N.Y.2d at 636), it nonetheless remains a factor to consider and, here, the correction officer finished his shift by working for another 5½ hours after the incident and he did not thereafter miss any work (see Bunton, 206 A.D.3d at 1725; Zalevsky, 82 A.D.3d at 1137). In addition, while the correction officer testified that he "lost a little bit of mobility bending [his] wrist backward" such that during "regular chores[ and] duties at work" he "felt it," he "did not... testify that he was unable to perform any activities because of the pain" (Bunton, 206 A.D.3d at 1725). Although the correction officer also testified that he sought medical attention approximately three or four weeks later for a concern about his arm, which was not further explained but presumably related to his unspecified degree of pain, the People did not introduce any medical records from that visit and, in any event, the doctor merely advised the correction officer that he had "probably just bruised tendons" that would resolve shortly thereafter (see id.; Lunetta, 38 A.D.3d at 1304). Moreover, the evidence establishes only that defendant's motivation for retreating into his cell and attempting to shut the cell door was to prevent the pat frisk from continuing and to buy time in order to rid himself of contraband on his person, and there is no evidence to support the inference that defendant deliberately sought to inflict pain upon the correction officer (see Haynes, 104 A.D.3d at 1143; cf. Chiddick, 8 N.Y.3d at 448).
Based on the foregoing, we modify the judgment by reversing that part convicting defendant of assault in the second degree under count one of the indictment and dismissing that count of the indictment. We further conclude that the sentence imposed on the remaining counts is not unduly harsh or severe. We note, however, that the uniform sentence and commitment form erroneously states that defendant received an indeterminate term of 3½ to 7 years of imprisonment on the count of promoting prison contraband in the first degree, and that document must therefore be amended to reflect that County Court imposed an indeterminate term of 3 to 6 years of imprisonment on that count (see People v Williams, 187 A.D.3d 1564, 1565 [4th Dept 2020]).