People v Ballard (James)

[*1] People v Ballard (James) 2015 NY Slip Op 50210(U) Decided on February 17, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2011-2635 RI CR

The People of the State of New York, Respondent,

against

James Ballard, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Mario F. Mattei, J.), rendered August 29, 2011. The judgment convicted defendant, after a nonjury trial, of menacing in the third degree, attempted criminal obstruction of breathing or blood circulation, attempted criminal possession of a weapon in the fourth degree, and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

After a nonjury trial, the Criminal Court convicted defendant of menacing in the third degree (Penal Law § 120.15), attempted criminal obstruction of breathing or blood circulation (Penal Law §§ 110.00, 121.11), attempted criminal possession of a weapon in the fourth degree (Penal Law §§ 110.00, 265.01 [2]), and harassment in the second degree (Penal Law § 240.26 [1]). Defendant's convictions stem from an incident that occurred in the apartment of the complainant, defendant's estranged wife. Three times during the course of a lengthy argument, defendant put his hands around the complainant's neck and choked her—once in a bedroom, once in the kitchen, and once in the living room. After defendant choked the complainant in the bedroom, he took off his brown leather belt, snapped it twice, and threatened to "beat" the complainant, put her in the tub, and put her in bed. The belt was not recovered.

Defendant's contention that the evidence was legally insufficient to support the conviction of menacing in the third degree is unpreserved for appellate review, as his motion to dismiss at the close of the People's case addressed only the charges of attempted criminal possession of a weapon in the fourth degree and attempted criminal obstruction of breathing or blood circulation (see CPL 470.05 [2]; People v Finch, 23 NY3d 408 [2014]; People v Hawkins, 11 NY3d 484, 491-493 [2008]). In any event, a person commits the crime of menacing in the third degree when, "by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury" (Penal Law § 120.15). Courts have determined that to convict a defendant of this crime, the complainant must testify, either directly or in effect, that he or she feared death, imminent serious physical injury or physical injury as a result of the perpetrator's conduct (see Matter of Ashley C., 59 AD3d 715 [2009]; Matter of John F., 12 AD3d 509, 510 [2004]), or that, based on the evidence, it may be inferred that the perpetrator intended to place the complainant in fear of death, imminent serious physical injury or imminent physical injury (see Matter of Monay W., 33 AD3d 809 [2006]; People v Bryant, 13 AD3d 1170, 1171 [2004]; People v Betko, 26 Misc 3d 134[A], 2010 NY Slip Op [*2]50132[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

The People limited their case with respect to menacing in the third degree to a portion of the incident—defendant's threat to beat the complainant after displaying and snapping his belt (see People v Barnes, 50 NY2d 375, 379 n 3 [1980]; People v Rothman, 117 AD2d 535, 536 [1986], affd 69 NY2d 767 [1987]). Shortly after defendant had choked the complainant in the bedroom, he took off his belt, snapped it twice, and told the complainant that he would beat her. Thus, under the particular circumstances of this case, it can be inferred that defendant intended to place the complainant in fear of death, imminent serious physical injury, or imminent physical injury. Consequently, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to support the conviction of menacing in the third degree.

The evidence was also legally sufficient to support the convictions of attempted criminal possession of a weapon in the fourth degree and attempted criminal obstruction of breathing or blood circulation. The evidence, viewed in the light most favorable to the prosecution, established that defendant possessed a "belt with [the] intent to use [it] unlawfully against another" (Penal Law § 265.01 [2]), in that he attempted to use or threatened to use his belt to beat the complainant. Moreover, the evidence established that, under the circumstances, defendant's belt was "readily capable of causing . . . serious physical injury" to the complainant and, thus, that it was "a dangerous instrument" (Penal Law §§ 10.00 [13]; 265.01 [2]; People v Carter, 53 NY2d 113, 116 [1981]; People v Wilson, 252 AD2d 241, 249 [1998]; People v Curtis, 222 AD2d 237 [1995], affd 89 NY2d 1003 [1997]; People v Prue, 219 AD2d 873 [1995]; People v White, 167 AD2d 870 [1990]; People v Campbell, 86 AD2d 403, 405 [1982]; People v Barreiro, 37 Misc 3d 1210[A], 2012 NY Slip Op 51989[U] [Crim Ct, Kings County 2012]; cf. People v Hall, 18 NY3d 122, 129 [2011]).

A conviction of attempted criminal obstruction of breathing or blood circulation requires proof that the defendant, "with [the] intent to impede the normal breathing or circulation of the blood of another person," attempted to "appl[y] pressure on the throat or neck of such person," or attempted to "block[ ] the nose or mouth of such person" (Penal Law §§ 110.00, 121.11; People v Bishop, 41 Misc 3d 144[A], 2013 NY Slip Op 52063[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see generally People v White, 100 AD3d 1397, 1398-1399 [2012]). Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish defendant's guilt of attempted criminal obstruction of breathing or blood circulation beyond a reasonable doubt, in that he put his hands around the complainant's throat, and applied pressure to her windpipe with his fingers or thumbs, which made it very difficult for her to breathe.

Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord great deference to the opportunity of the factfinder to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Zephyrin, 52 AD3d 543 [2008]). We must weigh "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d at 495 [internal quotation marks and citation omitted]), and determine whether an acquittal would not have been unreasonable based upon the evidence, and whether the finder of fact failed to accord the evidence the weight it should have been accorded (id.; see People v Danielson, 9 NY3d at 348). Here, an acquittal of menacing in the third degree would not have been unreasonable. However, after weighing any conflicting testimony, reviewing the rational inferences to be drawn from the evidence, and evaluating the strength of such conclusions, we find that the Criminal Court was justified in finding defendant guilty of menacing in the third degree beyond a reasonable doubt. Accordingly, the verdict of guilt of menacing in the third degree was not against the weight of the evidence (see People v Danielson, 9 NY3d at 348-349).

However, an acquittal of attempted criminal possession of a weapon in the fourth degree and attempted criminal obstruction of breathing or blood circulation would have been [*3]unreasonable. To the extent defendant argues that the verdict of guilt of criminal obstruction of breathing or blood circulation was against the weight of the evidence because his intent to interfere with the complainant's breathing was not established, we note that "criminal intent may be inferred from a defendant's actions and the surrounding circumstances" (People v Carte, 113 AD3d 191, 195 [2013]; see People v Peterson, 118 AD3d 1151 [2014]). Thus, the verdict of guilt with respect to those two charges was not against the weight of the evidence.

To the extent defendant claims that the conviction of attempted criminal possession of a weapon in the fourth degree should be dismissed because the belt was not recovered, it is well settled that the fact that a dangerous instrument was not recovered does not render the evidence legally insufficient or the verdict against the weight of the evidence (see People v Cohens, 81 AD3d 1442, 1444 [2011]; People v Gragnano, 63 AD3d 1437, 1440 [2009]; People v Wade, 274 AD2d 438 [2000]).

The court struck an appropriate balance between the probative value of defendant's prior convictions and bad acts on the issue of credibility, and the potential prejudice to defendant, and thus did not improvidently exercise its discretion in making its Sandoval ruling (see People v Hayes, 97 NY2d 203, 207-208 [2002]; People v Sandoval, 34 NY2d 371 [1974]; People v Barton, 110 AD3d 1089, 1090 [2013]). Defendant's 1998 manslaughter conviction and its particular underlying facts were probative on the issue of whether defendant put his interests ahead of the interests of society. The fact that the conviction was more than 10 years old did not require its preclusion, as there is no bright-line rule with respect to the age of prior convictions, particularly where, as here, the defendant served a substantial sentence on that conviction (see People v Walker, 83 NY2d 455, 459 [1994]; People v English, 119 AD3d 706, 707 [2014]; People v Crooks, 118 AD3d 816, 816-817 [2014]; People v Wilson, 78 AD3d 1213, 1215-1216 [2010]; People v Rosa, 47 AD3d 1009 [2008]; People v Mack, 6 AD3d 551 [2004]). Defendant's 2007 robbery conviction and its underlying facts were probative on the issue of defendant's willingness to steal, which constitutes material proof of lack of credibility (see People v Jones, 70 AD3d 1253, 1254-1255 [2010]; People v Randolph, 42 Misc 3d 143[A], 2014 NY Slip Op 50261[U] [App Term, 1st Dept 2014]), and on the issue of his willingness to put his interests ahead of those of society (see People v Crooks, 118 AD3d at 816-817). The court also correctly permitted defendant to be questioned, in a limited manner, on his use of an alias (see People v Walker, 83 NY2d at 460-462).

We note that the court precluded inquiry regarding defendant's prior drug convictions, and did not permit inquiry regarding the underlying facts of a 2007 assault conviction, as those facts bore similarity to the facts of the case at bar. The court also prohibited inquiry about defendant's bench warrant, parole, and probation history.

In any event, as this was a nonjury trial, the trial court was necessarily made aware of defendant's entire record at the Sandoval hearing, and "a judge is presumed capable of disregarding prejudicial matter" (People v Cobb, 294 AD2d 199, 200 [2002]; see People v Moreno, 70 NY2d 403, 406 [1987]; People v Small, 79 AD3d 1807 [2011]).

Accordingly, the judgment of conviction is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: February 17, 2015