Opinion
105567
07-23-2015
The PEOPLE of the State of New York, Respondent, v. James HILL, Appellant.
Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of counsel), for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of counsel), for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY and DEVINE, JJ.
Opinion
DEVINE, J. Appeal from a judgment of the Supreme Court (Milano, J.), rendered August 31, 2012 in Schenectady County, upon a verdict convicting defendant of the crime of assault in the second degree.
Defendant and his codefendant were charged in separate indictments with offenses related to a bar fight wherein they assaulted the bar's owner. The indictments were consolidated and, following a joint trial, both men were convicted of assault in the second degree. Supreme Court sentenced defendant, as a second violent felony offender, to seven years in prison, followed by five years of postrelease supervision. The codefendant appealed, and we recently affirmed his conviction (People v. Boddie, 126 A.D.3d 1129, 6 N.Y.S.3d 165 [2015] ). Defendant's appeal is now before us, and we likewise affirm. Defendant contends that the verdict was not supported by legally sufficient evidence and, moreover, was against the weight of the evidence. As defendant acknowledges, the legal sufficiency argument is unpreserved, given his failure to renew his motion to dismiss at the close of all proof (see People v. Boddie, 126 A.D.3d at 1132, 6 N.Y.S.3d 165 ; People v. Pine, 126 A.D.3d 1112, 1114, 4 N.Y.S.3d 746 [2015] ). Nevertheless, his assertion that the trial evidence failed to establish that he intentionally injured the victim “by means of a ... dangerous instrument” must be addressed as part of our weight of the evidence review (Penal Law § 120.05[2] ; see People v. Boddie, 126 A.D.3d at 1132, 6 N.Y.S.3d 165 ). Defendant testified that he threw a bar stool that struck the victim in the legs, and a physician who examined the victim after the attack testified that he sustained abrasions to his legs and complained of left knee pain. The victim was pinned to the floor during the assault and sustained further injuries when defendant repeatedly kicked him in the head, neck and chest. Indeed, one eyewitness testified that defendant was “stomping [the victim] in the head.” Defendant was wearing shoes when he did so, and it is clear that “[b]oots or shoes worn while kicking a victim can constitute a dangerous instrument under the assault statute” (People v. Hines, 39 A.D.3d 968, 969, 833 N.Y.S.2d 721 [2007], lv. denied 9 N.Y.3d 876, 842 N.Y.S.2d 788, 874 N.E.2d 755 [2007] ; see Penal Law § 10.00[13] ; People v. Carter, 53 N.Y.2d 113, 116–117, 440 N.Y.S.2d 607, 423 N.E.2d 30 [1981] ; People v. Lappard, 215 A.D.2d 245, 245, 627 N.Y.S.2d 613 [1995], lv. denied 86 N.Y.2d 737, 631 N.Y.S.2d 618, 655 N.E.2d 715 [1995] ). Therefore, after assessing the evidence in a neutral light and according due deference to the jury's assessment of credibility, we perceive no basis to disturb the verdict (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Archbold, 257 A.D.2d 676, 677–678, 684 N.Y.S.2d 644 [1999], lv. denied 93 N.Y.2d 850, 688 N.Y.S.2d 497, 710 N.E.2d 1096 [1999] ).
Defendant's remaining arguments do not require extended discussion. Supreme Court properly rejected defendant's request to submit the lesser included offense of assault in the third degree to the jury because, even when viewed in a light most favorable to defendant, “the jury could not have reasonably concluded [from the trial evidence] that defendant ‘committed the [ ] lesser offense[ ] but not the greater’ ” (People v. Boddie, 126 A.D.3d at 1132, 6 N.Y.S.3d 165, quoting People v. Brown, 100 A.D.3d 1035, 1037, 952 N.Y.S.2d 828 [2012], lv. denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327 [2013] ). Lastly, we perceive no circumstances in this case that would warrant a reduction in the sentence as harsh or excessive. Supreme Court imposed the maximum sentence allowed, but that sentence appropriately took into account the nature of the present offense and defendant's prior criminal history (see People v. Brabham, 126 A.D.3d 1040, 1044, 4 N.Y.S.3d 386 [2015], lvs. denied 25 N.Y.3d 1160, 15 N.Y.S.3d 292, 36 N.E.3d 95 [June 15, 2015] ; People v. Baugh, 101 A.D.3d 1359, 1362–1363, 956 N.Y.S.2d 313 [2012], lv. denied 21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., LAHTINEN and GARRY, JJ., concur.