PEOPLE v. SANDERS (2021)

Judgments, Supreme Court, New York County (Abraham L. Clott, J.), rendered January 11, 2018, convicting defendant, after a jury trial, of attempted assault in the first degree, assault in the second degree and criminal contempt in the first degree, and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life, unanimously affirmed.

Defendant's contention that the evidence was legally insufficient to support the conviction for attempted assault in the first degree is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict 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]).  The evidence showed that defendant drew a sharp object down the side of the victim's face, causing a significant laceration.  This evidence, viewed in light of the permissible inference of intent to cause the natural and probable consequences of one's acts (see People v. Getch, 50 N.Y.2d 456, 465, 429 N.Y.S.2d 579, 407 N.E.2d 425 [1980]), supports the conclusion that defendant intended to disfigure the victim seriously and permanently (see Penal Law § 120.10[2];  People v. Walker, 30 A.D.3d 215, 816 N.Y.S.2d 466 [1st Dept. 2006], lv denied 7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290 [2006];  Matter of Pilar C., 283 A.D.2d 210, 724 N.Y.S.2d 404 [1st Dept. 2001]).

The court properly declined to submit assault in the third degree (Penal Law § 120.00[1],[3]) as a lesser included offense of assault in the second degree (Penal Law § 120.05[2]).  There is no reasonable view of the evidence, viewed most favorably to defendant, that would support a finding that the laceration on the victim's face was caused by anything other than a sharp object constituting a dangerous instrument (People v. Brown, 29 A.D.3d 443, 815 N.Y.S.2d 84 [1st Dept. 2006], lv denied 7 N.Y.3d 846, 823 N.Y.S.2d 775, 857 N.E.2d 70 [2006];  People v. Machado, 300 A.D.2d 16, 749 N.Y.S.2d 871 [1st Dept. 2002], lv denied 99 N.Y.2d 630, 760 N.Y.S.2d 111, 790 N.E.2d 285 [2003]).  The nature of the injury is completely inconsistent with defendant's speculative claim that it was caused by his ring or a protruding fence wire.  Similarly, there was also no reasonable view of the evidence that would support a finding that defendant negligently caused the laceration.

The court also properly declined to charge the jury on justified use of ordinary force (Penal Law § 35.15[1]), based on its express finding that there was no reasonable view of the evidence that would support a finding that defendant was using anything other than deadly physical force.  As noted, the record is clear that the victim's laceration could only have been inflicted by a sharp object under circumstances constituting deadly physical force (see Penal Law § 10.00[11];  People v. Vega, 33 N.Y.3d 1002, 1004, 102 N.Y.S.3d 140, 125 N.E.3d 805 [2019];  People v. White, 185 A.D.3d 417, 417–418, 125 N.Y.S.3d 686 [1st Dept. 2020], lv denied 35 N.Y.3d 1116, 133 N.Y.S.3d 525, 158 N.E.3d 542 [2020]).  Defendant's arguments about the language of the court's ruling are without merit.

Any error in defendant being handcuffed, without any explanation on the record, during the rendition of the verdict and the polling of the jury was harmless (see People v. Best, 19 N.Y.3d 739, 744, 955 N.Y.S.2d 860, 979 N.E.2d 1187 [2012];  People v. Clyde, 18 N.Y.3d 145, 152, 938 N.Y.S.2d 243, 961 N.E.2d 634 [2011]).  The handcuffing could not have contributed to the verdict, which the jury had already reached.  Defendant's suggestion that jurors may have been inclined to repudiate their verdicts during polling, but were influenced to refrain from doing so by the sight of defendant in handcuffs, is highly speculative.

Defendant's challenges to his sentencing as a persistent felony offender are unavailing.  That adjudication was a provident exercise of discretion, given defendant's extraordinarily serious criminal history.  There was “substantial compliance” with the requirements of CPL 400.20 (People v. Banks, 265 A.D.2d 163, 164, 696 N.Y.S.2d 41 [1999], lv denied 94 N.Y.2d 819, 702 N.Y.S.2d 589, 724 N.E.2d 381 [1999]), whereby defendant received full notice of, and fully litigated, all relevant matters.  Defendant has not demonstrated any reason to call into question the well-established constitutionality of the persistent felony offender statute (see People v. Prindle, 29 N.Y.3d 463, 58 N.Y.S.3d 280, 80 N.E.3d 1026 [2017], cert denied ––– U.S. ––––, 138 S.Ct. 514, 199 L.Ed.2d 396 [2017]).