PEOPLE v. HINCHEY (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Ulster County (James Farrell, J.), rendered March 11, 2022, upon a verdict convicting defendant of the crimes of aggravated family offense (three counts) and bail jumping in the second degree.

Following a domestic dispute on March 28, 2019, defendant was charged by indictment with three counts of aggravated family offense for the specified offenses of criminal obstruction of breathing or blood circulation (count 1), assault in the third degree (count 2) and unlawful imprisonment in the second degree (count 3).  He later failed to appear in court and was charged, in a separate indictment, with bail jumping in the second degree.  The People's motion to consolidate the indictments for trial was granted, and, following a jury trial, defendant was convicted as charged.  County Court sentenced him to a prison term of 11/313 to 4 years for each conviction and directed that the sentences on counts 2 and 3 run concurrently to each other but consecutively to count 1 and that his sentence for bail jumping run consecutively to counts 1 through 3, resulting in an aggregate prison term of 4 to 12 years.¹  Defendant appeals.

We initially reject the argument that County Court abused its discretion in granting the People's motion to consolidate the indictments for trial.  Joinder of multiple offenses is authorized when, “[e]ven though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first” (CPL 200.20[2][b];  see CPL 200.20[4];  People v. Lane, 56 N.Y.2d 1, 7, 451 N.Y.S.2d 6, 436 N.E.2d 456 [1982]).  Here, proof of the aggravated family offenses would have been relevant and admissible to establish defendant's motive in a trial on the later bail jumping charge, and proof of defendant's bail jumping would have been relevant and admissible as evidence of his consciousness of guilt in a trial on the aggravated family offenses (see People v. Contreras, 191 A.D.2d 235, 236, 594 N.Y.S.2d 254 [1st Dept. 1993], lv denied 82 N.Y.2d 716, 602 N.Y.S.2d 813, 622 N.E.2d 314 [1993], cert denied 511 U.S. 1040, 114 S.Ct. 1560, 128 L.Ed.2d 207 [1994];  cf.  People v. Watkins, 180 A.D.3d 1222, 1234, 120 N.Y.S.3d 500 [3d Dept. 2020], lv denied 35 N.Y.3d 1030, 126 N.Y.S.3d 25, 149 N.E.3d 863 [2020];  People v. Torra, 309 A.D.2d 1074, 1075, 766 N.Y.S.2d 912 [3d Dept. 2003], lv denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003];  see generally People v. Doe, 148 Misc.2d 120, 121–124, 560 N.Y.S.2d 168 [Sup. Ct., N.Y. County 1990]).  We share County Court's view that defendant failed to make any persuasive argument of undue prejudice arising from consolidation (see People v. Torra, 309 A.D.2d at 1075, 766 N.Y.S.2d 912), particularly when considering that defendant ultimately elected to assert defenses regarding his motive and intent (see Penal Law §§ 25.00, 35.15;  215.59).

We also discern no issue with respect to County Court's handling of the prior bad act evidence – specifically, evidence of three prior incidents of physical violence and/or verbal threats by defendant toward the victim from within the year preceding the subject March 28, 2019 incident, as well as a March 13, 2019 conviction for his false imprisonment of her as part of one of those incidents.  This prior behavior provided relevant background as to the dynamic between defendant and the victim and was directly relevant to defendant's motive and intent, again notably in the face of his justification defense as to counts 2 and 3 (see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009];  People v. Pitt, 170 A.D.3d 1282, 1284, 95 N.Y.S.3d 459 [3d Dept. 2019], lv denied 33 N.Y.3d 1072, 105 N.Y.S.3d 16, 129 N.E.3d 336 [2019];  People v. Knox, 167 A.D.3d 1324, 1325–1326, 90 N.Y.S.3d 389 [3d Dept. 2018], lv denied 33 N.Y.3d 950, 100 N.Y.S.3d 166, 123 N.E.3d 825 [2019];  see generally People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 [1901]).²  We further agree with the court that the probative value of the evidence outweighed any unfair prejudice to defendant, notwithstanding the similarity between the prior bad acts and the charged conduct, and any such prejudice was minimized by timely and appropriate limiting instructions (see People v. Dorm, 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263;  People v. Cole, 215 A.D.3d 1064, 1065–1066, 187 N.Y.S.3d 379 [3d Dept. 2023], lv denied 40 N.Y.3d 927, 192 N.Y.S.3d 492, 213 N.E.3d 634 [2023];  People v. LaDuke, 204 A.D.3d 1083, 1088, 166 N.Y.S.3d 697 [3d Dept. 2022], lv denied 38 N.Y.3d 1072, 171 N.Y.S.3d 441, 191 N.E.3d 393 [2022];  compare People v. Elmy, 117 A.D.3d 1183, 1186–1187, 984 N.Y.S.2d 672 [3d Dept. 2014];  People v. Westerling, 48 A.D.3d 965, 968, 852 N.Y.S.2d 429 [3d Dept. 2008]).  The court's Sandoval ruling, concerning the same evidence, was also a provident exercise of discretion given defendant's demonstrated determination to further his self-interest in derogation of the interests of others and the attendant possibility that he would choose to act similarly on a witness stand (see People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974];  see also People v. Hayes, 97 N.Y.2d 203, 205–206, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002]).

Defendant lastly argues that County Court was required to run his sentences on counts 1 through 3 concurrently.  We disagree.  Although the imposition of concurrent or consecutive sentences is a matter generally entrusted to the discretion of the court (see Penal Law § 70.25), Penal Law § 70.25(2) does mandate that concurrent sentences be imposed “(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 [1996];  accord People v. Brahney, 29 N.Y.3d 10, 14, 51 N.Y.S.3d 9, 73 N.E.3d 349 [2017];  People v. Couser, 28 N.Y.3d 368, 375, 45 N.Y.S.3d 301, 68 N.E.3d 26 [2016]).  “[T]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” (People v. Rodriguez, 25 N.Y.3d 238, 244, 10 N.Y.S.3d 495, 32 N.E.3d 930 [2015] [internal quotation marks and citation omitted];  see People v. Brahney, 29 N.Y.3d at 14, 51 N.Y.S.3d 9, 73 N.E.3d 349;  People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 [1996]).  In other words, “the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong)” (People v. Laureano, 87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 [emphasis omitted];  see People v. Wright, 19 N.Y.3d 359, 363–364, 948 N.Y.S.2d 228, 971 N.E.2d 358 [2012];  People v. Day, 73 N.Y.2d 208, 211, 538 N.Y.S.2d 785, 535 N.E.2d 1325 [1989]).  If it is neither, then the People have satisfied their burden to demonstrate the legality of consecutive sentencing (see People v. Brahney, 29 N.Y.3d at 14–15, 51 N.Y.S.3d 9, 73 N.E.3d 349;  People v. Laureano, 87 N.Y.2d at 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Day, 73 N.Y.2d at 211, 538 N.Y.S.2d 785, 535 N.E.2d 1325).

The specified offenses underlying the aggravated family offense counts are criminal obstruction of breathing or blood circulation, assault in the third degree and false imprisonment in the second degree (see generally Penal Law § 240.75[1];  CPL 530.11[1][e]).  We compare the first two in evaluating County Court's consecutive sentencing decision.  As charged here, the actus reus – or “[a]ct,” meaning “bodily movement” (Penal Law § 15.00[1];  see People v. McKnight, 16 N.Y.3d 43, 48, 917 N.Y.S.2d 594, 942 N.E.2d 1019 [2010]) – that constitutes criminal obstruction of breathing or blood circulation is applying pressure to the throat or neck of another (see Penal Law § 121.11[a]).  The actus reus required for the manner of assault in the third degree charged here is conduct causing physical injury to another (see Penal Law § 120.00[1]), “[p]hysical injury” being defined as either “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]).  Although the Penal Law requires “no particular degree” of pain or impairment to satisfy the element of physical injury (People v. McDowell, 28 N.Y.2d 373, 375, 321 N.Y.S.2d 894, 270 N.E.2d 716 [1971]), objectively, the application of pressure contemplated by Penal Law § 121.11 cannot satisfy it (see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007];  People v. Lewis, 294 A.D.2d 847, 847, 741 N.Y.S.2d 760 [4th Dept. 2002]);  indeed, the obstruction of breathing offense was created to provide redress for the suffering endured by victims of domestic violence whose batterers employed such methods of control but caused no demonstrable pain, physical trauma or injury (see People v. Figueroa, 40 Misc.3d 1010, 1012–1018, 968 N.Y.S.2d 866 [City Ct., City of Rye 2013];  compare Penal Law §§ 121.12 [requiring that a person commit the crime of criminal obstruction of breathing or blood circulation and thereby cause “stupor, loss of consciousness for any period of time, or any other physical injury or impairment”], 121.13 [requiring that a person commit the crime of criminal obstruction of breathing or blood circulation and thereby cause “serious physical injury”]).  The statutory overlap addressed by Penal Law § 70.25(2) is therefore not present here (see People v. McGovern, 42 N.Y.3d 532, 536–537, 224 N.Y.S.3d 382, 249 N.E.3d 732 [2024];  compare People v. Brahney, 29 N.Y.3d at 16, 51 N.Y.S.3d 9, 73 N.E.3d 349;  People v. Sturkey, 77 N.Y.2d 979, 980, 571 N.Y.S.2d 898, 575 N.E.2d 384 [1991]), and the imposition of consecutive sentences was thus left to the discretion of County Court (see People v. Day, 73 N.Y.2d at 212, 538 N.Y.S.2d 785, 535 N.E.2d 1325).³  To the extent that the court's exercise of that discretion is challenged, we find no abuse thereof under these facts, where defendant repeatedly punched the victim in her head before placing his hand around her throat and covering her face with a pillow (see generally People v. Ramirez, 89 N.Y.2d at 450, 654 N.Y.S.2d 998, 677 N.E.2d 722).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   To the extent that the Criminal Disposition Report in the record reflects otherwise, we rely on the unambiguous sentencing transcript.

2.   As defendant acknowledges, in the absence of a stipulation, his March 13, 2019 conviction was also admissible to satisfy an essential element of the aggravated family offense counts (see CPL 200.63).

3.   In light of our conclusion that there is no overlap under either prong of Penal Law § 70.25(2), we need not address defendant's argument as to whether his offenses in this single criminal transaction should be deemed separate and distinct acts for restrictive sentencing purposes (see generally People v. Brahney, 29 N.Y.3d at 14–15, 51 N.Y.S.3d 9, 73 N.E.3d 349).

Garry, P.J.

Egan Jr., Aarons, Pritzker and Lynch, JJ., concur.