PEOPLE v. STRONG (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, four counts of assault in the second degree (Penal Law § 120.05[2] ), and one count of attempted assault in the second degree (§§ 110.00, 120.05[1] ).  In appeal No. 2, defendant appeals from his resentence on that conviction.

Initially, we dismiss the appeal from the judgment in appeal No. 1 insofar as it imposed sentence because that part of the judgment was superseded by the resentence at issue in appeal No. 2 (see People v. Weathington [appeal No. 2], 141 A.D.3d 1173, 1173, 34 N.Y.S.3d 859 [4th Dept. 2016], lv denied 28 N.Y.3d 975, 43 N.Y.S.3d 262, 66 N.E.3d 8 [2016] ).  We also dismiss the appeal from the resentence in appeal No. 2 inasmuch as defendant has not raised any challenges with respect thereto (see People v. Griffin, 151 A.D.3d 1824, 1825, 57 N.Y.S.3d 315 [4th Dept. 2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017] ).

We reject defendant's contention that Supreme Court erred in denying his challenge for cause to a prospective juror.  Although no “particular expurgatory oath or ‘talismanic’ words [are required,] ․ [prospective] jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict” (People v. Arnold, 96 N.Y.2d 358, 362, 729 N.Y.S.2d 51, 753 N.E.2d 846 [2001]; see People v. Mitchum, 130 A.D.3d 1466, 1467, 12 N.Y.S.3d 749 [4th Dept. 2015] ).  Here, when a prospective juror's answers raised a concern, the court and defense counsel elicited unequivocal statements from the prospective juror that she would “decide the case impartially and based on the evidence” (People v. Garcia, 148 A.D.3d 1559, 1560, 51 N.Y.S.3d 281 [4th Dept. 2017], lv. denied 30 N.Y.3d 980, 67 N.Y.S.3d 582, 89 N.E.3d 1262 [2017] [internal quotation marks omitted] ).

We reject defendant's further contention that the court erred in denying his request to charge the jury with assault in the third degree as a lesser included offense of each of the assault in the second degree counts (see People v. Vaughn, 36 A.D.3d 434, 436, 831 N.Y.S.2d 27 [1st Dept. 2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205 [2007], cert denied 552 U.S. 1284, 128 S.Ct. 1711, 170 L.Ed.2d 520 [2008];  People v. Saunders, 292 A.D.2d 780, 781, 738 N.Y.S.2d 785 [4th Dept. 2002], lv denied 98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235 [2002] ).  “To establish a charge on a lesser included offense, a defendant must show both that the greater crime cannot be committed without having concomitantly committed the lesser by the same conduct, and that a reasonable view of the evidence supports a finding that he or she committed the lesser, but not the greater, offense” (People v. James, 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261 [2008] ).  Here, it is undisputed that the first prong of that test is satisfied because assault in the third degree (Penal Law § 120.00[1] ) is a lesser included offense of assault in the second degree as charged in the indictment (§ 120.05[2]; see People v. Smith, 121 A.D.3d 1568, 1569, 992 N.Y.S.2d 831 [4th Dept. 2014], lv denied 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 [2016] ).  With respect to the second prong, however, we conclude that there is no reasonable view of the evidence to support a finding that defendant “intended to cause physical injury to the victim[s] and that he caused physical injury to the victim[s], but that he did not do so ‘by means of ․ a dangerous instrument’ ” (People v. Brown, 117 A.D.3d 1536, 1538, 985 N.Y.S.2d 375 [4th Dept. 2014], quoting § 120.05[2];  see People v. Agina, 163 A.D.3d 980, 980, 81 N.Y.S.3d 203 [2d Dept. 2018], lv denied 32 N.Y.3d 1062, 89 N.Y.S.3d 117, 113 N.E.3d 951 [2018] ).

The record amply establishes that defendant repeatedly struck the victims with a folded-over extension cord, leaving scars on both victims that were still visible months after the beatings.  Under the circumstances in which the extension cord was used, it was “readily capable of causing ․ serious physical injury” (Penal Law § 10.00[13] ), and therefore constituted a dangerous instrument (see People v. Rozanski, 209 A.D.2d 1018, 1018, 619 N.Y.S.2d 441 [4th Dept. 1994], lv. denied 84 N.Y.2d 1038, 623 N.Y.S.2d 194, 647 N.E.2d 466 [1995];  see also People v. Still, 26 A.D.3d 816, 817, 810 N.Y.S.2d 271 [4th Dept. 2006], lv denied 6 N.Y.3d 853, 816 N.Y.S.2d 759, 849 N.E.2d 982 [2006] ).

We have reviewed defendant's remaining contention and conclude that it lacks merit.