People v. Brown

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT-APPELLANT.

DONALD G. O'GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., TROUTMAN, WINSLOW, AND BANNISTER, 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 second degree ( Penal Law § 120.05 [7] ). Defendant and the codefendant, both inmates at a correctional facility, fought with another inmate (victim) and caused injury to him. Defendant contends that County Court erred in granting the People's request for a jury instruction on accessorial liability because it introduced an alternative theory of liability, i.e., that he acted in concert with the codefendant, that was not charged in the indictment as amplified by the bill of particulars. We reject that contention. "An indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant's basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice" ( People v. Rivera , 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ; see People v. Atkinson , 185 A.D.3d 1438, 1439, 128 N.Y.S.3d 129 [4th Dept. 2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 288, 155 N.E.3d 781 [2020] ). The court therefore properly instructed the jury on both theories (see People v. Young , 55 A.D.3d 1234, 1235, 864 N.Y.S.2d 584 [4th Dept. 2008], lv denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 [2008] ). Contrary to defendant's contention, "the accessorial liability instruction did not introduce any new theory of culpability into the case that was inconsistent with that in the indictment, and thus his indictment as a principal provided him with fair notice of the charge against him" ( id. ; see Rivera , 84 N.Y.2d at 770-771, 622 N.Y.S.2d 671, 646 N.E.2d 1098 ; Atkinson , 185 A.D.3d at 1439, 128 N.Y.S.3d 129 ).

Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction because the People did not disprove a justification defense (see People v. Contreras , 154 A.D.3d 1320, 1320, 62 N.Y.S.3d 671 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ; People v. Haynes , 133 A.D.3d 1238, 1239, 20 N.Y.S.3d 275 [4th Dept. 2015], lv denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 [2016] ). In any event, defendant did not present a justification defense, and he neither requested nor received an instruction to the jury on justification (see People v. Simpson , 173 A.D.3d 1617, 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] ). Contrary to defendant's further contention, 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] ), and affording them the benefit of every favorable inference (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), we conclude that the evidence is legally sufficient to establish that defendant acted in concert with the codefendant to cause physical injury to the victim (see People v. Tapia , 151 A.D.3d 437, 439, 56 N.Y.S.3d 78 [1st Dept. 2017], affd 33 N.Y.3d 257, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 643, 205 L.Ed.2d 385 [2019] ; People v. Pietrocarlo , 191 A.D.3d 1263, 1263, 140 N.Y.S.3d 339 [4th Dept. 2021] ) and that the victim sustained a physical injury. The evidence demonstrated that the victim sustained a one-inch deep laceration to his cheek that required sutures and resulted in a scar (see People v. Williams , 161 A.D.3d 1296, 1297-1298, 77 N.Y.S.3d 216 [3d Dept. 2018], lv denied 32 N.Y.3d 942, 84 N.Y.S.3d 869, 109 N.E.3d 1169 [2018] ; People v. Moye , 81 A.D.3d 408, 408-409, 915 N.Y.S.2d 554 [1st Dept. 2011], lv denied 16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202 [2011] ; see also People v. Robinson , 121 A.D.3d 1405, 1407, 995 N.Y.S.2d 372 [3d Dept. 2014], lv denied 24 N.Y.3d 1221, 4 N.Y.S.3d 609, 28 N.E.3d 45 [2015] ). Viewing the evidence in light of the elements of the crime 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 reject defendant's additional contention that the verdict is 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 ).

We reject defendant's contention that the court erred in sentencing him as a persistent violent felony offender. Defendant had two prior violent felony convictions, in 2005 and 2015. Defendant waived his challenge to the 2005 conviction inasmuch as he was adjudicated a second violent felony offender based on that conviction when he was sentenced in 2015, and he did not show good cause for his failure to challenge the constitutionality of the 2005 conviction at that time (see CPL 400.15 [7] [b] ; [8]; 400.16 [2]; People v. Worth , 133 A.D.3d 1242, 1243, 20 N.Y.S.3d 770 [4th Dept. 2015], lv denied 27 N.Y.3d 1009, 38 N.Y.S.3d 118, 59 N.E.3d 1230 [2016] ; People v. Jones , 289 A.D.2d 962, 962, 738 N.Y.S.2d 260 [4th Dept. 2001], lv denied 98 N.Y.2d 652, 745 N.Y.S.2d 511, 772 N.E.2d 614 [2002] ). Finally, the sentence is not unduly harsh or severe.