People v Allen (Debbi)
Annotate this CaseDecided on July 17, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2008-738 K CR.
The People of the State of New York, Respondent,
against
Debbi Allen, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Toko Serita, J.), rendered March 19, 2008. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree and attempted criminal trespass in the second degree.
ORDERED that the judgment of conviction is affirmed.
On October 9, 2006, the People charged defendant, in a felony complaint, with multiple counts of burglary as well as with assault in the third degree (Penal Law § 120.00 [1]), menacing in the third degree (Penal Law § 120.15), criminal trespass in the second degree (Penal Law § 140.15), criminal mischief in the fourth degree (Penal Law § 145.00 [1]), and harassment in the second degree (Penal Law § 240.26 [1]). The felony complaint was reduced and converted to an information (see CPL 180.50) when the burglary counts were dismissed at the People's request. On the first day of trial, the Criminal Court granted the prosecutor's request to amend the charges of assault in the third degree, criminal trespass in the second degree and criminal mischief in the fourth degree to the attempts to commit those offenses (see Penal Law § 110.00). After a nonjury trial, the Criminal Court convicted defendant of attempted assault in the third degree and attempted criminal trespass in the second degree, and acquitted defendant of the remaining [*2]charges.
On appeal, defendant argues that the amended information was a "nullity" because the original instrument charging defendant with assault in the third degree was facially insufficient to allege the element of physical injury, that defendant was prejudiced by the People's failure to produce a police witness's handwritten "aided report," and that the convictions were against the weight of the evidence. We find these claims unpreserved or without merit, and affirm the judgment of conviction.
Defendant's claim that the reduction of the count of assault in the third degree to the attempt thereof was barred because the felony complaint failed to adequately allege facts supporting the element of physical injury is without merit. Following the dismissal of the burglary counts, which were the only felonies charged, the resulting accusatory instrument adequately alleged sufficient facts with respect to the remaining counts for it to be jurisdictionally sufficient. Because the new charge, attempted assault in the third degree, is sufficiently supported by the facts alleged in the original instrument to warrant the amendment, there was no error (see CPL 100.45 [3]; 170.35 [1] [a]). The factual portion of the original accusatory instrument, which alleged that defendant "did pull [the victim's hair" and "did punch [the victim] about the head and neck area," which "caused [the victim] to suffer pain to the neck and head areas, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed," sufficed, at the very least, to allege the offense (see Penal Law §§ 110.00, 120.00 [1]; 10.00 [9]; CPL 100.40; People v Chiddick, 8 NY3d 445, 447 [2007]; Matter of Maximilian Y., 83 AD3d 471 [2011]; People v Nash, 288 AD2d 937 [2001]; Matter of Carlton P., 143 AD2d 833 [1988]; People v Dreyden, 28 Misc 3d 5, 8 [App Term, 2d, 11th & 13th Jud Dists 2010]).
The Rosario claim is unpreserved as the defense did not argue at trial that the People's failure to produce a handwritten version of the "aided report" prepared by a police witness, the typed copy of which was concededly available, prejudiced the defense (see CPL 470.05 [2]; People v Graves, 85 NY2d 1024, 1027 [1995]). Further, there is no evidence that a handwritten version of the aided report exists (see People v Parkinson, 268 AD2d 792, 793 [2000]; People v Hall, 268 AD2d 682, 684 [2000]; People v Gillis, 220 AD2d 802, 805 [1995]; People v Gomez, 11 Misc 3d 141[A], 2006 NY Slip Op 50668[U] [App Term, 1st Dept 2006]), rendering speculative consideration of whether there was "a reasonable possibility that the non-disclosure materially contributed to the result of the trial" (CPL 240.75; People v Crandall, 38 AD3d 996, 997 [2007]; People v Samuels, 303 AD2d 769, 770 [2003]; People v Avellone, 223 AD2d 422 [1996]).
Finally, in the exercise of our factual review power (CPL 470.15 [5]; People v Romero, 7 NY3d 633 [2006]), we conclude that the verdicts finding defendant guilty of attempted assault in the third degree and attempted criminal trespass in the second degree were not against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (People v Danielson, 9 NY3d 342 [2007]), we must accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). At trial, defendant denied her guilt and insisted that she was at her own home and asleep when the incident occurred, which testimony was allegedly corroborated by the only other defense witness, the father of her two children. The Criminal Court implicitly discredited [*3]that testimony and credited the testimony of the victim and of an investigating police officer. On this record, it cannot be said that defendant's version of the events was so compelling, or that of the victim and police officer so weak, as to render the Criminal Court's credibility determinations unreasonable.
Accordingly, the judgment of conviction is affirmed.
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: July 17, 2012
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