Opinion
452 KA 17-02227
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Samson C. GORTON, Defendant-Appellant.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF COUNSEL), FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, 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 assault in the first degree ( Penal Law § 120.10 [1] ) and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). Defendant's conviction stems from his conduct in stabbing his housemate (victim) with a knife after the victim confronted defendant and accused him of stealing his property. We reject defendant's contention that the evidence is legally insufficient to establish his intent to cause serious physical injury. It is well settled that " ‘[a] jury is entitled to infer that a defendant intended the natural and probable consequences of his acts’ " ( People v. Barboni , 21 N.Y.3d 393, 405, 971 N.Y.S.2d 729, 994 N.E.2d 820 [2013] ; see People v. Manigault , 145 A.D.3d 1428, 1429, 44 N.Y.S.3d 620 [4th Dept. 2016], lv denied 29 N.Y.3d 950, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ). Here, defendant stabbed the victim in the abdomen with a hunting knife that lacerated the victim's stomach and liver and even broke off the tip of a rib. We conclude that "the natural and probable consequence of defendant's conduct in thrusting a knife four inches into the victim's torso is, at a minimum, serious physical injury" ( People v. Simpson , 173 A.D.3d 1617, 1618, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ; see People v. Collins , 43 A.D.3d 1338, 1338, 842 N.Y.S.2d 624 [4th Dept. 2007], lv denied 9 N.Y.3d 1005, 850 N.Y.S.2d 393, 880 N.E.2d 879 [2007] ; see also People v. Smajlaj , 160 A.D.3d 455, 456, 73 N.Y.S.3d 560 [1st Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ). We also reject defendant's contention that the evidence is legally insufficient to establish that his actions were not justified. County Court instructed the jury on justification in defense of a person and in defense against a robbery (see Penal Law § 35.15 [2] [a], [b] ). Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the People disproved the defense of justification beyond a reasonable doubt (see People v. Allen , 36 N.Y.3d 1033, 1034, 140 N.Y.S.3d 465, 164 N.E.3d 271 [2021] ; Manigault , 145 A.D.3d at 1429, 44 N.Y.S.3d 620 ; People v. Brooks , 139 A.D.3d 1391, 1393, 31 N.Y.S.3d 372 [4th Dept. 2016], lv denied 28 N.Y.3d 1026, 45 N.Y.S.3d 378, 68 N.E.3d 107 [2016] ). With respect to defendant's purported justification in defense of a person, the People established that defendant did not actually believe that the victim was using or about to use deadly physical force against him and that a reasonable person in defendant's position would not have so believed (see § 35.15 [2] [a] ; see generally People v. Wesley , 76 N.Y.2d 555, 559-560, 561 N.Y.S.2d 707, 563 N.E.2d 21 [1990] ; People v. Butera , 23 A.D.3d 1066, 1068, 803 N.Y.S.2d 856 [4th Dept. 2005], lv denied 6 N.Y.3d 774, 811 N.Y.S.2d 341, 844 N.E.2d 796 [2006], reconsideration denied 6 N.Y.3d 832, 814 N.Y.S.2d 80, 847 N.E.2d 377 [2006] ). The victim was not carrying a weapon, and defendant did not testify that he believed that the victim was doing so. There was simply no evidence for the jury to conclude that defendant believed that the victim was using or about to use deadly physical force. With respect to defendant's purported justification in the context of a robbery, "[t]here was no credible evidence that defendant reasonably believed that the victim was committing or attempting to commit a robbery" ( People v. Cardamone , 287 A.D.2d 407, 407, 732 N.Y.S.2d 334 [1st Dept. 2001], lv denied 97 N.Y.2d 702, 739 N.Y.S.2d 102, 765 N.E.2d 305 [2002] ; see People v. Patterson , 176 A.D.3d 1637, 1639, 110 N.Y.S.3d 190 [4th Dept. 2019], lv denied 34 N.Y.3d 1080, 116 N.Y.S.3d 155, 139 N.E.3d 813 [2019] ; see also People v. Green , 32 A.D.3d 364, 365, 820 N.Y.S.2d 271 [1st Dept. 2006], lv denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73 [2006] ). Although the victim testified that he told defendant to drop the bags that he was carrying, the victim gave no indication that he was about to use force to take the property (see §§ 35.15 [2] [b] ; 160.00).
Viewing the evidence in light of the elements of assault in the first degree as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we also reject defendant's contention that the verdict with respect to that count is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's further contention that the indictment should be dismissed because the prosecutor failed to instruct the grand jurors on the justification defense in the context of a robbery. There was no reasonable view of the evidence before the grand jury to support that justification defense (see People v. Forde , 140 A.D.3d 1085, 1087, 34 N.Y.S.3d 477 [2d Dept. 2016], lv denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ; People v. Torres , 252 A.D.2d 60, 65, 686 N.Y.S.2d 375 [1st Dept. 1999], lv denied 93 N.Y.2d 1028, 697 N.Y.S.2d 587, 719 N.E.2d 948 [1999] ; see generally People v. Ball , 175 A.D.3d 987, 988, 107 N.Y.S.3d 241 [4th Dept. 2019], affd 35 N.Y.3d 1009, 125 N.Y.S.3d 668, 149 N.E.3d 429 [2020] ). Defendant did not testify before the grand jury, and his statement to the police that was admitted in evidence before the grand jury was equivocal and vague on the issue whether he believed the victim was attempting to rob him.
Defendant contends that, during the trial, the court erred in not giving an expanded charge on the justification defense in the context of a robbery to explain that a person, i.e., the victim, may not use force to recover property allegedly owned by him under a good-faith claim of right (see generally People v Reid , 69 N.Y.2d 469, 475, 515 N.Y.S.2d 750, 508 N.E.2d 661 [1987] ). The court used the standard jury charges on justification in the defense of a person and justification in the context of a robbery as set forth in the Criminal Jury Instructions, and the court's charge set forth the governing law (see People v. Acevedo , 118 A.D.3d 1103, 1107, 987 N.Y.S.2d 660 [3d Dept. 2014], lv denied 26 N.Y.3d 925, 17 N.Y.S.3d 88, 38 N.E.3d 834 [2015] ). The court did not err in declining to use the expanded charge that was suggested by defendant (see id. ; People v. Dunlap , 51 A.D.3d 943, 944, 858 N.Y.S.2d 368 [2d Dept. 2008], lv denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448 [2008] ; People v. Van Billiard , 277 A.D.2d 958, 958, 716 N.Y.S.2d 546 [4th Dept. 2000], lv denied 96 N.Y.2d 788, 725 N.Y.S.2d 653, 749 N.E.2d 222 [2001] ). The victim did not testify that he used any force, physical or verbal, in an attempt to have defendant return what the victim believed were his belongings, and there was therefore no need for the court to explain to the jury that the victim would not have been able to use force under a good-faith claim of right to the property.
Defendant's contention that he was punished for exercising his right to trial is unpreserved (see People v. Tetro , 181 A.D.3d 1286, 1290, 119 N.Y.S.3d 788 [4th Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 388, 152 N.E.3d 1189 [2020] ). In any event, that contention is without merit inasmuch as "[t]he mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial ..., and there is no indication in the record before us that the sentencing court acted in a vindictive manner based on defendant's exercise of the right to a trial" ( id. [internal quotation marks omitted]). Finally, the sentence is not unduly harsh or severe.