Opinion
05-05-2017
The PEOPLE of the State of New York, Respondent, v. Timothy JOYCE, Defendant–Appellant.
Bruce R. Bryan, Syracuse, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Bruce R. Bryan, Syracuse, for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the first degree (Penal Law § 120.10[1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3] ). Defendant's contention that the evidence is legally insufficient to establish that he committed assault in the first degree is not preserved for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ) and, in any event, is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Defendant's intent to cause serious physical injury may be inferred from the evidence that he fired a weapon directly at the victim from a close range (see generally People v. Brown, 120 A.D.3d 954, 956, 990 N.Y.S.2d 755, lv. denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 ; People v. Marquez, 49 A.D.3d 451, 451, 853 N.Y.S.2d 553, lv. denied 10 N.Y.3d 936, 862 N.Y.S.2d 343, 892 N.E.2d 409 ). The evidence also is legally sufficient to establish that the victim sustained serious physical injury (see Penal Law § 10.00 [10] ), inasmuch as the victim testified that the shooting resulted in the loss of movement in his arm, which persisted for one year after the incident, as well as the necessity of surgery to repair the arm with a bone graft, metal, and screws (see People v. Lake, 301 A.D.2d 432, 433, 752 N.Y.S.2d 879, lv. denied 99 N.Y.2d 656, 760 N.Y.S.2d 120, 790 N.E.2d 294 ; see also People v. Andrews, 24 A.D.3d 1184, 1185, 809 N.Y.S.2d 318 ; People v. Irwin, 5 A.D.3d 1122, 1123, 774 N.Y.S.2d 237, lv. denied 3 N.Y.3d 642, 782 N.Y.S.2d 413, 816 N.E.2d 203 ).
Moreover, viewing the evidence in light of the elements of the crimes 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 ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that, " ‘on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded’ " (People v. Lawrence, 141 A.D.3d 1079, 1082, 34 N.Y.S.3d 827, lv. denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 ). With respect to the charges of criminal possession of a weapon in the second degree, we reject defendant's contention that the verdict is against the weight of the evidence on the ground that his possession of the gun was justified under a theory of temporary lawful possession (see generally People v. Holmes, 129 A.D.3d 1692, 1694–1695, 13 N.Y.S.3d 720, lv. denied 26 N.Y.3d 968, 18 N.Y.S.3d 605, 40 N.E.3d 583 ).
We also reject defendant's contention that Supreme Court erred in precluding defendant from offering testimony concerning the actions committed by one of defendant's neighbors prior to the shooting. The neighbor's alleged actions were not relevant to a justification defense inasmuch as they did not establish any reasonable basis for defendant to believe that the neighbor, or the victim, would use physical force against defendant or his wife (see generally People v. Morgan, 172 A.D.2d 414, 414, 568 N.Y.S.2d 788, lv. denied 78 N.Y.2d 971, 574 N.Y.S.2d 951, 580 N.E.2d 423 ). Even assuming, arguendo, that defendant feared the victim because of some past conduct by the neighbor, we conclude that, inasmuch as the alleged confrontations with the neighbor occurred years prior to this incident, they are too remote in time to be relevant to defendant's justification defense (see People v. Grady, 40 A.D.3d 1368, 1372–1373, 838 N.Y.S.2d 207, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 ).
We further reject defendant's contention that the court erred in refusing to instruct the jury on the defense of justification with respect to the use of nondeadly physical force. Although defendant may have aimed the gun at the victim's raised arm, such action constituted deadly physical force regardless of where defendant aimed the weapon inasmuch as defendant fired a loaded weapon at the victim from a close range (see generally People v. Magliato, 68 N.Y.2d 24, 29–30, 505 N.Y.S.2d 836, 496 N.E.2d 856 ; People v. Haynes, 133 A.D.3d 1238, 1239, 20 N.Y.S.3d 275, lv. denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 ).
Defendant's contention that the court improperly questioned a witness in response to a juror note is not preserved for our review (see CPL 470.05 [2 ]; People v. Brown, 120 A.D.3d 1545, 1545–1546, 992 N.Y.S.2d 591, lv. denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 ), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's contention that the submission of the juror note during the testimony of a witness established that the jurors engaged in premature deliberations, inasmuch as there is nothing in the record to indicate that the juror who wrote the note had engaged in disqualifying conduct.
Finally, we agree with defendant, that, in light of his age, his lack of a prior criminal record and other mitigating circumstances, the sentence is unduly harsh and severe. As a matter of discretion in the interest of justice, we therefore modify the judgment by reducing the sentences imposed for assault in the first degree (Penal Law § 120.10[1] ) and for criminal possession of a weapon in the second degree (§ 265.03[1][b] ) to determinate terms of imprisonment of 10 years (see CPL 470.15[6][b] ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentences imposed for assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the second degree (§ 265.03[1][b] ) to determinate terms of imprisonment of 10 years, and as modified the judgment is affirmed.