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The PEOPLE of the State of New York, Respondent, v. Cendno RAHAMAN, Appellant.
MEMORANDUM AND ORDER
While the victim was out late with his girlfriend and his friend one night in August 2018, they encountered defendant and became involved in a verbal altercation. The verbal altercation subsequently escalated to a physical one. Defendant swung a knife at the girlfriend and the friend, but he missed striking them. Defendant, however, stabbed the victim in the head and wrist. Defendant was thereafter charged with multiple crimes in connection with this incident. Following a jury trial, defendant was convicted of three counts of attempted assault in the first degree (counts 1, 2 and 4), assault in the second degree (count 6), attempted murder in the second degree (count 5) and tampering with physical evidence (count 7). County Court sentenced defendant to a term of imprisonment followed by a period of postrelease supervision. Defendant appeals.
Defendant argues that the verdict convicting him of attempted murder in the second degree, the three counts of attempted assault in the first degree and tampering with physical evidence was not based upon legally sufficient evidence or, in the alternative, was against the weight of the evidence. To the extent that defendant directs his legal sufficiency argument at the three counts of attempted assault in the first degree, he failed to preserve it because he only made a general motion to dismiss with respect to these specific counts (see People v. Splunge, 159 A.D.3d 1136, 1136, 71 N.Y.S.3d 750 ; People v. Stacconi, 151 A.D.3d 1395, 1396, 58 N.Y.S.3d 201  ). Although defendant did make a specific motion as to the counts of attempted murder in the second degree and tampering with physical evidence, he failed to renew his motion at the close of all proof. Accordingly, defendant's legal sufficiency argument is also unpreserved as to these counts (see People v. Sloley, 179 A.D.3d 1308, 1309 n. 2, 117 N.Y.S.3d 373 , lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 38, 148 N.E.3d 502 ; People v. Hilton, 166 A.D.3d 1316, 1317, 87 N.Y.S.3d 399 , lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 248, 122 N.E.3d 1160  ), and we decline defendant's request to exercise our interest of justice jurisdiction (see People v. Lucas, 25 A.D.3d 822, 823, 806 N.Y.S.2d 798 , lv denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286  ).
Regarding defendant's weight of the evidence claim, where, as here, a contrary result would not have been unreasonable, we “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” (People v. Wilson, 164 A.D.3d 1012, 1014, 83 N.Y.S.3d 705 ; see People v. Mamadou, 172 A.D.3d 1524, 1524, 100 N.Y.S.3d 423 , lv denied 33 N.Y.3d 1106, 106 N.Y.S.3d 670, 130 N.E.3d 1280 ; People v. Arhin, 165 A.D.3d 1487, 1488, 85 N.Y.S.3d 631  ). When undertaking a weight of the evidence analysis, we view the evidence in a neutral light and defer to the jury's assessment of the credibility of the witnesses (see People v. Benjamin, 183 A.D.3d 1125, 1128, 123 N.Y.S.3d 770 ; People v. Gill, 168 A.D.3d 1140, 1140–1141, 90 N.Y.S.3d 392  ). That said, defendant premises his weight of the evidence claim on the basis that the proof failed to show that he possessed the requisite intent to commit the challenged crimes. “Criminal intent may be inferred from the totality of the circumstances or from the natural and probable consequences of the defendant's conduct” (People v. Conway, 179 A.D.3d 1218, 1219, 116 N.Y.S.3d 118  [internal quotation marks, ellipsis, brackets and citations omitted], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 ; see People v. Pine, 126 A.D.3d 1112, 1114, 4 N.Y.S.3d 746 , lv denied 27 N.Y.3d 1004, 38 N.Y.S.3d 113, 59 N.E.3d 1225  ).
As to the conviction for attempted murder in the second degree, the trial evidence establishes that, after the victim tripped and fell while trying to run away from defendant, defendant got on top of him with a knife. According to the victim, defendant began “stabbing and swing[ing] at [his] head” with the knife. This attack did not stop even after the victim's friend hit defendant on the head with a bottle. The victim stated that he was “fighting for [his] life” but was eventually able to escape. The victim was “bleeding a lot” and he was treated at the hospital for his injuries. A surgeon testified that the victim had “active bleeding” from one of the head lacerations that required the blood vessel to be tied off. The surgeon further explained that if the blood vessel was not tied off, it would continue to bleed to the point where the victim could go into shock. Although defendant contends that the victim's injuries were minor, “[t]he absence of a long-term serious injury to a victim does not preclude the finding of life-threatening actions by a defendant” (People v. Ryder, 146 A.D.3d 1022, 1024, 44 N.Y.S.3d 598 , lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263  ). Viewing the testimonial evidence, as well as the videos and photographs, in a neutral light, the conviction for attempted murder in second degree was supported by the weight of the evidence (see Penal Law §§ 110.00, 125.25; People v. Greenfield, 167 A.D.3d 1060, 1062, 89 N.Y.S.3d 461 , lv denied 32 N.Y.3d 1204, 99 N.Y.S.3d 245, 122 N.E.3d 1157 ; People v. Salce, 124 A.D.3d 923, 925–926, 1 N.Y.S.3d 417 , lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172  ).
The convictions for the three counts of attempted assault in the first degree likewise were not against the weight of the evidence (see Penal Law §§ 110.00, 120.10; People v. Gill, 168 A.D.3d at 1142, 90 N.Y.S.3d 392; People v. Andrews, 78 A.D.3d 1229, 1230–1231, 911 N.Y.S.2d 221 , lv denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179  ). In addition to the foregoing proof with respect to the attack on the victim, the record discloses that defendant swung the knife at the friend's midsection. The friend stated that defendant “took a good swing” at him and that defendant came within three inches of striking him. The record also discloses that defendant chased the girlfriend and swung the knife at her while she was cornered in a vestibule area of a bar. The girlfriend stated that the knife came “[v]ery close” to her head. Taking into account that intent may be inferred by the manner in which defendant used the knife (see People v. Lewis, 46 A.D.3d 943, 945, 846 N.Y.S.2d 766  ), defendant's argument with respect to the convictions for these three counts is without merit.
Regarding the conviction for tampering with physical evidence, the record indicates that defendant, as he fled the scene, threw the knife below street level in a dark vestibule and that it was eventually discovered with the aid of a flashlight. Viewing the evidence in a neutral light and the conflicting inferences that may be drawn therefrom, we cannot say that the conviction for tampering with physical evidence was against the weight of the evidence (see Penal Law § 215.40; People v. Maull, 167 A.D.3d 1465, 1466, 90 N.Y.S.3d 412 , lvs denied 33 N.Y.3d 948, 951, 100 N.Y.S.3d 185, 209, 123 N.E.3d 844, 868 ; People v. Neulander, 162 A.D.3d 1763, 1764–1765, 80 N.Y.S.3d 791 , affd 34 N.Y.3d 110, 111 N.Y.S.3d 259, 135 N.E.3d 302 ; People v. Whitehead, 119 A.D.3d 1080, 1081, 990 N.Y.S.2d 301 , lv denied 24 N.Y.3d 1048, 998 N.Y.S.2d 318, 23 N.E.3d 161  ).
Defendant maintains that he was extremely intoxicated at the time of the incident at issue and, therefore, he lacked the requisite intent to commit the challenged crimes. There was evidence as to how much alcohol defendant had consumed prior to the altercation, as well as conflicting evidence regarding defendant's level of intoxication at the time of the altercation. The jury heard this evidence and apparently found that defendant's intoxication did not negate the element of intent. Because we see no basis to disturb the jury's finding in this regard, defendant's argument is unpersuasive (see People v. Oshintayo, 163 A.D.3d 1353, 1356–1357, 82 N.Y.S.3d 223 , lv denied 32 N.Y.3d 1006, 86 N.Y.S.3d 765, 111 N.E.3d 1121 ; People v. Shuler, 100 A.D.3d 1041, 1043, 952 N.Y.S.2d 687 , lv denied 20 N.Y.3d 988, 958 N.Y.S.2d 704, 982 N.E.2d 624  ).
Defendant also argues that the audio portion from the body camera video of the responding police officers should have been excluded as inadmissible hearsay. We disagree. The statements made in the video were not being offered for their truth but to explain what the police officers did and did not do as part of their investigation into the incident at issue (see People v. McCottery, 90 A.D.3d 1323, 1325, 935 N.Y.S.2d 687 , lv denied 19 N.Y.3d 975, 950 N.Y.S.2d 358, 973 N.E.2d 768 ; People v. Carney, 18 A.D.3d 242, 243, 795 N.Y.S.2d 10 , lv denied 5 N.Y.3d 882, 808 N.Y.S.2d 584, 842 N.E.2d 482  ). In addition, County Court, on multiple occasions, provided the jury with a limiting instruction (see People v. McCottery, 90 A.D.3d at 1325, 935 N.Y.S.2d 687; People v. Davis, 23 A.D.3d 833, 835, 805 N.Y.S.2d 435 , lv denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282  ). Accordingly, reversal is not warranted on this basis (see People v. Gregory, 78 A.D.3d 1246, 1246–1247, 910 N.Y.S.2d 295 , lv denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183  ). Furthermore, even if the court erred in admitting the audio portion from the video, any error was harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787  ).
Defendant contends that County Court failed to conduct a further inquiry to determine whether the jury foreperson was grossly unqualified to serve. “To decide whether a juror is grossly unqualified, the trial court must conduct a probing and tactful inquiry and exercise its discretion to determine whether the context of the entire colloquy reveals an obviously partial state of mind and convincingly demonstrates that the sworn juror cannot render an impartial verdict” (People v. Crider, 176 A.D.3d 1499, 1500, 113 N.Y.S.3d 347  [internal quotation marks, brackets and citations omitted], lv denied 34 N.Y.3d 1157, 120 N.Y.S.3d 267, 142 N.E.3d 1169 ; see People v. Green, 127 A.D.3d 1473, 1474–1475, 8 N.Y.S.3d 687 , lvs denied 27 N.Y.3d 965, 969, 36 N.Y.S.3d 626, 630, 56 N.E.3d 906, 910  ). We defer to the trial court's determination regarding whether a juror is grossly unqualified in view of its superior position to assess the partiality of a juror (see People v. Kuzdzal, 31 N.Y.3d 478, 483, 105 N.E.3d 328 ; People v. Montes, 178 A.D.3d 1283, 1288, 116 N.Y.S.3d 747 , lv denied 34 N.Y.3d 1161, 120 N.Y.S.3d 246, 142 N.E.3d 1148 ; People v. Leader, 285 A.D.2d 823, 824, 728 N.Y.S.2d 289 , lvs denied 97 N.Y.2d 756, 758, 742 N.Y.S.2d 617, 619, 769 N.E.2d 363, 365  ).
After summations, but prior to when County Court charged the jury, juror No. 116 stated, “I wonder once all of this is over if we will see the sentencing on the news. I don't want to have gone through all of this and not know what happened.” Juror No. 116 was subsequently discharged. County Court then individually questioned each juror. When the court asked the foreperson whether she had heard a remark by juror No. 116, the foreperson responded, “Not that I recall.” The foreperson further responded that nothing that any of the jurors have said had caused her to form an opinion about defendant's guilt and that she has followed, and could continue to follow, the court's instructions about not discussing the case during the trial. After the court questioned all of the jurors, defendant requested a mistrial or, alternatively, for a further inquiry of the foreperson. The request stemmed from a perceived discrepancy between the foreperson's answer that she did not recall a remark by juror No. 116 and juror No. 7's answer that the foreperson had made a comment in response to juror No. 116's remark. The court, however, found that the jurors provided truthful responses and took the foreperson's word at face value that she did not recall any comment by juror No. 116. Given that the record discloses that the court conducted a probing and tactful inquiry (see People v. Robinson, 121 A.D.3d 1179, 1181, 994 N.Y.S.2d 711  ) and deferring to its credibility determination that the foreperson could remain impartial and did not hear juror No. 116's remark (see People v. Green, 127 A.D.3d at 1475, 8 N.Y.S.3d 687), the court did not err in denying defendant's request for a mistrial.1
Defendant argues that the imposed sentence was harsh and excessive.2 He was sentenced to concurrent terms of imprisonment, the greatest of which was 25 years, to be followed by five years of postrelease supervision, for the convictions of attempted assault in the first degree (count 4), attempted murder in the second degree (count 5), assault in the second degree (count 6) – charges that relate to the attack on the victim – and tampering with physical evidence (count 7). The sentences for these counts were to run consecutively to the sentence of seven years, to be followed by five years of postrelease supervision, which was imposed for the conviction of attempted assault in the first degree (count 1) – a charge relating to the attack on the friend. Defendant was also sentenced to another consecutive term of imprisonment of eight years, to be followed by five years of postrelease supervision, for the conviction of attempted assault in the first degree (count 2), which relates to the attack on the girlfriend. After consideration of all the relevant factors and the circumstances of this case, we deem it appropriate to reduce the 40–year aggregate sentence in the interest of justice by directing that all sentences run concurrently to each other (see CPL 470.15[b]; People v. Anderson, 149 A.D.3d 1407, 1416, 54 N.Y.S.3d 176 , lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 130, 89 N.E.3d 520 ; People v. Collazo, 45 A.D.3d 899, 901, 844 N.Y.S.2d 509 , lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 17, 881 N.E.2d 1204 ; People v. Smith, 309 A.D.2d 1081, 1083, 766 N.Y.S.2d 234 ; People v. Sheppard, 273 A.D.2d 498, 500, 708 N.Y.S.2d 740 , lv denied 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154 ; see generally People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675  ). Defendant's remaining contentions have been examined and are without merit.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by directing that all sentences imposed upon defendant run concurrently to one another, and, as so modified, affirmed.
1. Contrary to the People's claim, the argument is preserved inasmuch as defendant moved for a mistrial upon the completion of the individual questioning of all jurors – i.e., after juror No. 7 gave a response about the foreperson and at a time when County Court still could have taken action (see CPL 470.05 ).
2. Defendant's claim that he was punished for exercising his right to a trial because the imposed sentence greatly exceeded what was offered in a plea offer is unpreserved for review (see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017  ).
Egan Jr., J.P., Mulvey and Pritzker, JJ., concur.
Response sent, thank you
Docket No: 112022
Decided: December 03, 2020
Court: Supreme Court, Appellate Division, Third Department, New York.
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