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People v. Guzman
People v Guzman
2026 NY Slip Op 05972 October 14, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. The People of the State of New York, respondent,
v
Carlos Guzman, appellant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026
2020-00159, (Ind. No. 377/18)
Francesca E. Connolly, J.P.
Valerie Brathwaite Nelson
Laurence L. Love
James P. McCormack, JJ.
Patricia Pazner, New York, NY (Sam Feldman and Chelsea Lopez of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky, Rhys Johnson, and Nicole Kaye of counsel), for respondent.
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DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Alexander Jeong, J.), rendered January 15, 2020, convicting him of kidnaping in the second degree, unlawful imprisonment in the first degree, strangulation in the second degree, assault in the second degree (two counts), attempted assault in the second degree, assault in the third degree, and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence on those convictions and for the crime of criminal obstruction of breathing and blood circulation.
ORDERED that the judgment is modified, on the law, by vacating the convictions of strangulation in the second degree under count 2 of the indictment, assault in the second degree under counts 3 and 5 of the indictment, attempted assault in the second degree, as charged as a lesser included offense under count 4 of the indictment, assault in the third degree under count 8 of the indictment, and criminal possession of a weapon in the fourth degree under count 10 of the indictment, vacating the sentences imposed thereon, dismissing those counts of the indictment, and vacating the sentence imposed for the crime of criminal obstruction of breathing and blood circulation; as so modified, the judgment is affirmed.
In determining whether evidence was legally sufficient to support a conviction, the court must consider whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (People v Contes, 60 NY2d 620, 621 [emphasis and internal quotations marks omitted]; see People v Rossey, 89 NY2d 970). The People are entitled to every reasonable inference that can be drawn from the evidence, and a conviction is legally sufficient when, based on the evidence at trial, "any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder" (People v Lynch, 95 NY2d 243, 247 [alteration and internal quotation marks omitted]; see People v Williams, 84 NY2d 925, 926; People v Bleakley, 69 NY2d 490).
Here, the defendant correctly contends that the evidence at trial was legally insufficient to support his convictions of strangulation in the second degree (Penal Law § 121.12) and assault in the second degree (Penal Law § 120.05[2]) by use of a cellular phone charging cable. [*2]The People failed to prove the required element of physical injury to the victim, which is necessary to establish those crimes (see People v Tactikos, 187 AD3d 800; People v Case, 150 AD3d 1634). While the question of whether physical injury has been established is generally a question for the trier of fact,
"there is an objective level . . . below which the question is one of law" (Matter of Philip A., 49 NY2d 198, 200; see People v Young, 99 AD3d 739). The injuries to the victim's neck, described as "redness," "small black and blue marks,"
and "little scratches" are insufficient to establish physical injury (see People v Bernazard, 188 AD3d 1239, 1240; People v Smith, 187 AD3d 944). Accordingly, as the evidence with respect to count 3 of the indictment is insufficient to prove the lesser-included offense of attempted assault in the second degree (see CPL 470.15[2][a]; People v McMurray, 143 AD3d 542), the defendant's conviction of assault in the second degree with a cellular phone charging cable under count
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3 of the indictment, and the sentence imposed thereon, must be vacated, and that count of the indictment dismissed. As attempted strangulation in the second degree is not a legally cognizable offense, the defendant's conviction of strangulation in the second degree under count 2 of the indictment, and the sentence imposed thereon, must also be vacated, and that count of the indictment dismissed (see People v Prescott, 95 NY2d 655, 659; People v Campbell, 72 NY2d 602, 606). In light of this determination, the defendant's contention that he was deprived of a fair trial by the admission of certain expert testimony on the subject of strangulation need not be reached. The defendant failed to preserve for appellate review his contention that the evidence was legally insufficient to support his convictions of attempted assault in the second degree (Penal Law §§ 110.00, 120.05[2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2]) as to a metal object (see CPL 470.05[2]; People v Gray, 86 NY2d 10, 19). We nevertheless reach the issue in the exercise of our interest of justice jurisdiction (see People v Yayun Weng,
215 AD3d 986). The object was described by the victim as "something that was like metal," which caused tiny red marks on the victim's stomach. This evidence was insufficient to prove that the object was a dangerous instrument (see Penal Law § 10.00[13]) capable of causing serious physical injury (see id. § 10.00[10]; People v Hall, 18 NY3d 122, 129; People v Yayun Weng, 215 AD3d at 986). Accordingly, the defendant's convictions of attempted assault in the second degree as charged as a lesser included offense under count 4 of the indictment, and criminal possession of a weapon in the fourth degree under count 10 of the indictment, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed.
Contrary to the defendant's contention, we find that the evidence was legally sufficient to establish his guilt beyond a reasonable doubt of criminal possession of a weapon in the fourth degree as to a cellular phone charging cable. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d at 495). Upon reviewing the evidence here, we are satisfied that the verdict of guilt of criminal possession of a weapon in the fourth degree as to a cellular phone charging cable was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant failed to preserve for appellate review his contention that the count of assault in the second degree during the commission of a felony (Penal Law § 120.05[6]) and the count of assault in the third degree (Penal Law § 120.00[1]) were duplicitous (see People v Allen, 24 NY3d 441, 449-450; People v Becoats, 17 NY3d 643, 650-651). We nevertheless reach the issue in the exercise of our interest of justice jurisdiction (see People v Woodley, 201 AD3d 749; People v Payne, 241 AD2d 466). "Each count of an indictment may charge one offense only" (CPL 200.30[1]), and a single count that charges more than one offense is duplicitous (see People v Alonzo, 16 NY3d 267, 269; People v Bauman, 12 NY3d 152, 154). Here, because a multiplicity of acts is encompassed in each of these single counts, it is impossible to determine which particular act or injury was the basis for the guilty verdict as to those counts, and the verdict may not have been unanimous (see People v Keindl, 68 NY2d 410, 421; People v Singh, 128 AD3d 860; People v Dathan, 27 AD3d 575). Accordingly, the defendant's convictions of assault in the second degree under count 5 of the indictment, and assault in the third degree under count 8 of the indictment, and the sentences imposed thereon, must be vacated, and those counts of the indictment dismissed.
As the People correctly concede, the sentence for criminal obstruction of breathing or blood circulation must be vacated, because the defendant was not convicted of that crime (see People v Asson, 149 AD2d 427). The record as a whole establishes that defense counsel competently represented the defendant and provided him with meaningful representation (see People v Baldi, 54 NY2d 137, 147).
The remaining sentence imposed was not excessive (see People v Suitte, 90 AD2d80). CONNOLLY, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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