PEOPLE v. LIVOTI

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Supreme Court, Appellate Term, New York,

The PEOPLE of the State of New York, Respondent, v. Francis X. LIVOTI, Appellant.

Decided: August 03, 1998

PRESENT: WILLIAM P. McCOOE, J.P., WILLIAM J. DAVIS, and LUIS A. GONZALEZ, Justices. Trager, Cronin & Byczek, L.L.P., Lake Success (Raymond E. Kerno of counsel), for appellant. Robert T. Johnson, District Attorney of Bronx County (Peter D. Coddington of counsel), for respondent.

Judgment of conviction rendered November 7, 1997 (Megan Tallmer, J.) affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   The defendant police officer recklessly engaged in conduct which created a substantial risk of serious physical injury to another person when he grabbed the 16-year-old, handcuffed complainant in a choke hold and squeezed “like a claw” until directed to stop by another officer (see, Penal Law §§ 15.05[3];  120.20;  People v. Chrysler, 85 N.Y.2d 413, 415, 626 N.Y.S.2d 18, 649 N.E.2d 1162;  Matter of Louis Q., 180 A.D.2d 800, 580 N.Y.S.2d 437).

 As to the physical injury element of the crime of third-degree assault, the complainant testified that the choke hold used by defendant was “so hard it stopped my breathing ․ [I]t caused me pain ․ [and] made me feel like I was trapped.   It hurt my Adam's apple.   My Adam's apple felt like it was being crushed because of the pressure that was being applied.”   As a result of the incident, the complainant sustained a bruised, swollen, and aching neck, and had “deep red marks” on either side of his Adam's apple, injuries which caused the complainant difficulty eating, sleeping and speaking.   The testimony of a physician who examined the complainant one day after the incident in a hospital emergency room confirmed that there were areas of redness about “dime size” on both sides of the “windpipe area” of the complainant's neck, and that the complainant had sustained a soft tissue injury consistent with one inflicted by “some sort of pressure”.   In our view, this evidence supported the trial court's finding that the complainant suffered physical injury within the meaning of Penal Law § 10.00(9) (see, People v. Bogan, 70 N.Y.2d 860, 862, 523 N.Y.S.2d 458, 517 N.E.2d 1344;  People v. Driver, 248 A.D.2d 172, 670 N.Y.S.2d 422;  People v. Jackson, 169 A.D.2d 887, 889-890, 564 N.Y.S.2d 611, lv. denied 77 N.Y.2d 996, 571 N.Y.S.2d 922, 575 N.E.2d 408).

Upon our independent review of the facts, we are satisfied that the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Issues of credibility were placed before the trial court, as factfinder, and we find no reason to disturb its verdict.

We perceive no abuse of sentencing discretion.

PER CURIAM.