People v Cruci (George)
Annotate this CaseDecided on December 13, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2006-242 OR CR.
The People of the State of New York, Respondent,
against
George Cruci, Appellant.
Appeal from a judgment of the Justice Court of the Town of Newburgh, Orange County (Jude Martini, J.), rendered on January 30, 2006. The judgment convicted defendant, upon a jury verdict, of menacing in the second degree and sentenced him to nine months' incarceration.
Judgment of conviction affirmed.
Following a traffic accident on November 23, 2004, defendant attempted to leave the scene, then got out of his car, carrying a baseball bat, and advanced upon the other driver, yelling and cursing. Later, outside his attorney's office, he allegedly yelled and cursed at responding police officers and resisted attempts to take him into custody. He was charged with menacing in the second degree (Penal Law § 120.14 [1]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), disorderly
conduct (Penal Law § 240.20 [3]) and resisting arrest (Penal Law § 205.30). Following a jury trial, defendant was convicted of menacing in the second degree and acquitted of the other charges.
The court below properly denied defendant's motion to dismiss the accusatory instrument as to the charge of menacing in the second degree (Penal Law § 120.14 [1]). Taken as a whole, the information and its original supporting deposition serve the required purpose of putting defendant on notice of the charges against him with sufficient detail to prevent him from being tried twice for the same offense (see People v Casey, 95 NY2d 354, 360 [2000]). It is clear, upon reading together the information's allegation, upon information and belief, that "George Cruci, did swing an aluminum bat in an aggressive manner towards the victim after a traffic accident, placing the victim in fear for his life" along with the deposition's statement that "I witnessed a heavy set white male get out of the red car with a baseball [sic] and walk back to the other driver," that a word had simply been omitted in taking down the witness's deposition. It is [*2]even obvious what that word is. A scribal defect of this nature cannot be said to deprive defendant of notice of the crime and all of its elements, as well as his commission of it (see e.g. People v Prevete, 10 Misc 3d 78 [App Term, 9th & 10th Jud Dists 2005]).
Moreover, the People soon thereafter filed a second supporting deposition, that of the complaining witness, which clearly stated that the instrument in question was a baseball bat.
The evidence at trial was legally sufficient to support defendant's conviction of menacing in the second degree. The standard of appellate review of legal sufficiency of the trial evidence is whether, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]; People v Nealy, 32 AD3d 400 [2006]), "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (People v Contes, 60 NY2d at 621 [emphasis in original]; see also People v Taylor, 94 NY2d 910 [2000]). In order to establish defendant's guilt of menacing in the second degree (Penal Law § 120.14 [1]), the People were required to prove that defendant:
"intentionally plac[ed] or attempt[ed] to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm."
The jury could properly find from the trial evidence that defendant's actions in leaving his car and advancing upon the complainant with a baseball bat in his hand were performed with the intention to place the complainant in reasonable fear of physical injury, serious physical injury or death. There is no requirement that a dangerous instrument, such as a baseball bat, be brandished, as opposed to displayed (see People v Bryant, 13 AD3d 1170 [2004]; Matter of John F., 12 AD3d 509 [2004]), to support a conviction. Menacing requires no physical contact, actual, attempted or threatened, but only an intent to place another individual in reasonable fear (People v Bartkow, 96 NY2d 770, 772 [2001]). This standard is readily met upon the facts of this matter, in which the complainant testified that he was too nervous and upset even to write down defendant's license plate number after the incident.
Execution of defendant's sentence was stayed pending this appeal. Upon review, the sentenced imposed was neither harsh nor excessive under the circumstances presented, including defendant's prior criminal record, the pendency of similar charges against him in another jurisdiction at the time, defendant's lack of remorse, the expressed concerns of the Probation Department and its recommendation of incarceration, and defendant's failure to appear for his first probation appointment and on the initial date set for sentencing (see generally People v Notey, 72 AD2d 279 [1980]; see also People v Suitte, 90 AD2d 80 [1982]).
Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: December 13, 2006
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