PEOPLE v. TRACY (2025)

Judgment, Supreme Court, New York County (Curtis J. Farber, J.), rendered January 10, 2023, convicting defendant, after a jury trial, of assault in the first degree and attempted assault in the second degree, and sentencing him to an aggregate term of eight years, and order, same court and justice, entered on or about September 18, 2023, which denied his CPL 440.10 motion to vacate the judgment, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, 43 N.Y.3d 26, 229 N.Y.S.3d 62, 254 N.E.3d 606 [2024]).  The record supports the jury's conclusion that the victim sustained serious physical injury by suffering “physical injury which creates a substantial risk of death” (Penal Law § 10.00[10]).  The victim's attending physician testified that a CT scan revealed that the victim had sustained a deep laceration to the neck, close to major blood vessels, causing internal bleeding.  The physician explained that, without prompt medical attention, the victim would have continued to actively bleed into his neck, leading to suffocation and death (see e.g. People v. Guzman, 212 A.D.3d 580, 182 N.Y.S.3d 92 [1st Dept. 2023], lv denied 39 N.Y.3d 1141, 188 N.Y.S.3d 453, 209 N.E.3d 1279 [2023];  People v. Gonzalez, 198 A.D.3d 543, 152 N.Y.S.3d 807 [1st Dept. 2021], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 333, 180 N.E.3d 497 [2021]).

Defendant was not deprived of the right to a fair trial by the court's preclusion of his videotaped statement to police shortly after his arrest.  During cross-examination, the prosecutor permissibly confronted defendant with three prior inconsistent statements from the video statement, to impeach his credibility (see People v. Jones, 207 A.D.2d 745, 745, 617 N.Y.S.2d 4 [1st Dept. 1994], lv denied 85 N.Y.2d 863, 624 N.Y.S.2d 382, 648 N.E.2d 802 [1995]).  This limited cross-examination did not imply that defendant's self-defense claim was a recent fabrication (see People v. McClean, 69 N.Y.2d 426, 428, 515 N.Y.S.2d 428, 508 N.E.2d 140 [1987]).  Moreover, throughout the trial, the People adduced evidence indicating that defendant began asserting his justification defense immediately after the incident, so “the statements were properly excluded because they had not been made prior to the time when a motive to falsify would have arisen” (People v. Mejia, 292 A.D.2d 189, 190, 739 N.Y.S.2d 42 [1st Dept. 2002], lv denied 99 N.Y.2d 561, 754 N.Y.S.2d 213, 784 N.E.2d 86 [2002];  see also People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265 [1993]).

The integrity of the grand jury proceedings was not impaired by the People's decision to refrain from presenting defendant's exculpatory hearsay statements to police (see People v. Mitchell, 82 N.Y.2d 509, 513, 605 N.Y.S.2d 655, 626 N.E.2d 630 [1993];  People v. Lancaster, 69 N.Y.2d 20, 25–26, 511 N.Y.S.2d 559, 503 N.E.2d 990 [1986]).  Insofar as the prosecutor elicited defendant's inculpatory statement to police that he threw a knife in a dumpster and therefore arguably should have also elicited his subsequent remark:  “I didn't want to kill him;  he was going to shoot me;  I didn't see a gun” (see Mitchell, 82 N.Y.2d at 513, 605 N.Y.S.2d 655, 626 N.E.2d 630), this potential error does not merit “the exceptional remedy of dismissal” (People v. Morel, 131 A.D.3d 855, 861, 17 N.Y.S.3d 102 [1st Dept. 2015], lv denied 26 N.Y.3d 1147, 32 N.Y.S.3d 61, 51 N.E.3d 572 [2016]).  Even if the officer had relayed the full statement to the grand jury, the People would not have been required to provide a justification charge, as defendant's statement did not suggest that he had any concrete reason to believe the victim was about to use deadly physical force, and he acknowledged that he never actually saw a firearm (see People v. Harrell, 132 A.D.3d 507, 17 N.Y.S.3d 705 [1st Dept. 2015], lv denied 26 N.Y.3d 1088, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015]).

Defendant received the effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 711–712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant has not shown that counsel's alleged deficiency fell below an objective standard of reasonableness or affected the outcome of the case.  Counsel argued that defendant had standing to move to controvert the search warrant based on his continuing subjective expectation of privacy in his property, as demonstrated by the circumstances of his flight and his subsequent statements to police (see generally People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996]).  Contrary to defendant's contentions, counsel would not have prevailed had he supplemented the motion with an affidavit from defendant containing further information about his subjective beliefs and intentions (see People v. Fernandez, 236 A.D.3d 527, 528, 228 N.Y.S.3d 551 [1st Dept. 2025], lv granted 43 N.Y.3d 1055, 239 N.Y.S.3d 77, 265 N.E.3d 1094 [2025]), as this would not have altered the motion court's determination that defendant lacked an objectively reasonable expectation of privacy in an unlocked cell phone left behind, entirely unattended, in a public area of an apartment building (see e.g. People v. Espinal, 161 A.D.3d 556, 557, 77 N.Y.S.3d 371 [1st Dept. 2018], lv denied 32 N.Y.3d 1064, 89 N.Y.S.3d 118, 113 N.E.3d 952 [2018];  People v. Bilsky, 261 A.D.2d 174, 174–175, 691 N.Y.S.2d 388 [1st Dept. 1999], affd 95 N.Y.2d 172, 712 N.Y.S.2d 84, 734 N.E.2d 341 [2000]).

We perceive no basis for reducing the sentence.