Opinion
1227 KA 15-00981
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Albert W. SWIFT, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by reversing that part convicting defendant of strangulation in the second degree and granting a new trial on count five of the indictment and by reducing the sentences of imprisonment imposed for burglary in the first degree under counts one and two of the indictment to determinate terms of 10 years, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of burglary in the first degree ( Penal Law § 140.30 [2], [3] ) and one count of strangulation in the second degree (§ 121.12), among other offenses. Although defendant failed to preserve for our review his contention that the evidence is not legally sufficient to support the conviction (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), we nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ) and conclude that the evidence is legally sufficient to support the conviction. 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 there is a valid line of reasoning and permissible inferences that could lead a reasonable person to conclude that defendant unlawfully entered the apartment he once shared with the complainant (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The complainant testified that she had kicked defendant out of the apartment some time before the night of the incident, and the evidence at trial established that defendant had to physically break two different doors to access the apartment.
Contrary to defendant's further contention, we conclude that the evidence is legally sufficient to establish that the complainant sustained a physical injury (see Penal Law § 10.00 [9] ; People v. Ruvalcaba , 187 A.D.3d 1553, 1556, 130 N.Y.S.3d 871 [4th Dept. 2020], lv denied 36 N.Y.3d 1053, 140 N.Y.S.3d 869, 164 N.E.3d 956 [2021] ; People v. McKelvey , 180 A.D.3d 494, 494, 115 N.Y.S.3d 883 [1st Dept. 2020], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 634, 149 N.E.3d 395 [2020] ; cf. People v. Case , 150 A.D.3d 1634, 1635-1636, 54 N.Y.S.3d 475 [4th Dept. 2017] ; People v. White , 100 A.D.3d 1397, 1399, 953 N.Y.S.2d 423 [4th Dept. 2012] ). The complainant testified that defendant punched and choked her, causing her to gasp for air and, at some point during the incident, to urinate on herself. Following the incident, the complainant's neck "was really sore" and "[i]t really hurt to even move it." Additionally, her "back was sore, [her] side was sore," and her pain level was a seven out of ten, prompting her to go to the hospital for treatment. In pictures displayed to the jury, the complainant identified bruises and marks from defendant's fingers on her neck.
We further conclude, after viewing the evidence in light of the elements of the crimes as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), that the verdict is not against the weight of the evidence (see Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
With respect to the issue of physical injury, defendant further contends that County Court erred in denying his request to charge attempted strangulation in the second degree as a lesser included offense of strangulation in the second degree. We agree. To be entitled to a charge on a lesser included offense, "a defendant must show both that the greater crime cannot be committed without having concomitantly committed the lesser by the same conduct, and that a reasonable view of the evidence supports a finding that he or she committed the lesser, but not the greater, offense" ( People v. James , 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261 [2008] ; see People v. Glover , 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ).
Here, there is no question that the first prong of the test has been met; the disputed issue is whether there is a reasonable view of the evidence supporting a determination of guilt on the lesser count but not the higher count. Strangulation in the second degree requires proof that the victim suffered stupor, loss of consciousness, or physical injury or impairment ( Penal Law § 121.12 ). Inasmuch as there was no evidence that the complainant suffered stupor or loss of consciousness, defendant's guilt of this offense rested entirely on the evidence that the complainant sustained a physical injury. Viewing the evidence in the light most favorable to defendant (see People v. Rivera , 23 N.Y.3d 112, 120-121, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ), we conclude that a reasonable view of the evidence would have supported a determination that the complainant did not sustain a physical injury and thus that defendant was guilty of only the lesser offense and not the greater (cf. People v. Moreno , 187 A.D.3d 449, 450, 133 N.Y.S.3d 8 [1st Dept. 2020], lv denied 36 N.Y.3d 974, 138 N.Y.S.3d 458, 162 N.E.3d 687 [2020] ; People v. Pietoso , 168 A.D.3d 1276, 1280, 92 N.Y.S.3d 455 [3d Dept. 2019], lv denied 33 N.Y.3d 1034, 102 N.Y.S.3d 526, 126 N.E.3d 176 [2019] ). We therefore modify the judgment by reversing that part convicting defendant of strangulation in the second degree, and we grant defendant a new trial on count five of the indictment.
Contrary to defendant's further contention, the court did not err in permitting the People to introduce Molineux evidence related to two prior incidents of domestic violence between defendant and the complainant. That evidence provided background information related to the parties’ relationship and put defendant's charged conduct in context (see People v. Leonard , 29 N.Y.3d 1, 7, 51 N.Y.S.3d 4, 73 N.E.3d 344 [2017] ; People v. Frankline , 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26 [2016] ; People v. Colbert , 60 A.D.3d 1209, 1212, 875 N.Y.S.2d 339 [3d Dept. 2009] ). In addition, the first incident was relevant to establish the existence and defendant's knowledge of the order of protection that he allegedly violated (see People v. Anderson , 120 A.D.3d 1548, 1548-1549, 993 N.Y.S.2d 215 [4th Dept. 2014], lv denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014] ; People v. Thomas , 26 A.D.3d 241, 241, 808 N.Y.S.2d 687 [1st Dept. 2006], lv denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 [2006] ).
Defendant raises several issues in contending that he was denied effective assistance of counsel, but we conclude that his contention lacks merit. Although defendant did not receive error-free representation, "[t]he test is ‘reasonable competence, not perfect representation’ " ( People v. Oathout , 21 N.Y.3d 127, 128, 967 N.Y.S.2d 654, 989 N.E.2d 936 [2013] ). Viewing the evidence, the law, and the circumstances of this case as a whole and as of the time of the representation, we conclude that defendant was afforded meaningful representation (see People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, we agree with defendant that the sentence is unduly harsh and severe under the circumstances of this case. Defendant has no prior criminal record, has been hospitalized numerous times for severe mental illness, and was offered an aggregate sentence of five years by the People in their pretrial plea offer. Thus, as a matter of discretion in the interest of justice, we further modify the judgment by reducing the sentences of imprisonment imposed for burglary in the first degree under counts one and two of the indictment to determinate terms of 10 years, to be followed by the five years of postrelease supervision imposed by the court (see CPL 470.15 [6] [b] ).