People v. McCann

Appeals (1) from a judgment of the County Court of

Following a jury trial, defendant was convicted of attempted murder in the second degree, kidnapping in the second degree, criminal use of a firearm in the first degree, assault in the first degree, attempted assault in the first degree and stalking in the first degree. The charges stemmed from a campaign of harassment against his ex-girlfriend that culminated in him kidnapping and savagely assaulting her. County Court thereafter sentenced defendant, as a second violent felony offender, to an aggregate prison term of 35 years to be followed by five years of postrelease supervision. Defendant appeals from the initial conviction, as well as a resentencing upon the stalking conviction that did not affect his aggregate sentence.

Defendant contends that the verdict was not supported by legally sufficient evidence, but his general motion to dismiss at the close of the People’s proof left that argument unpreserved for our review (see People v Valverde, 122 AD3d 1074 , 1075 [2014]; People v Nichol, 121 AD3d 1174 , 1176 [2014]). “Nevertheless, his concomitant claim that the convictions were against the weight of the evidence requires this Court to assess the sufficiency of the evidence as to each element of the crimes” (People v Nichol, 121 AD3d at 1176 [citations omitted]; see People v Danielson, 9 NY3d 342 , 349 [2007]). To that end, the victim testified that defendant was verbally and physically abusive while they were dating. In August 2010, the victim told defendant that she did not want to be with him any longer and, shortly thereafter, defendant approached her in a rage, shoved her off of an exercise machine and began screaming at her in public. Defendant then engaged in a campaign of harassment against the victim that lasted several months and included his repeatedly accosting her in public, telephoning and texting her, notwithstanding her telling him in no uncertain terms that she wanted to be left alone. The harassment took a particularly ominous turn in September 2010 when defendant, whom the victim visited in the hopes of reconciling, choked her and threatened to kill her. The victim testified that this course of conduct by defendant left her with a fear of injury, and that fear can only be viewed as a reasonable one (see Penal Law §§ 120.50 [3]; 120.60).

Defendant additionally argues that the verdict with regard to the assault in the first degree conviction was against the weight of the evidence because the victim did not sustain a serious physical injury — i.e., one “which creates a substantial risk of death, or which causes death or serious and protracted disfigurement ... or protracted loss or impairment of the function of any bodily organ” — when he placed her in a choke hold on October 5, 2010 (Penal Law § 10.00 [10]). In that regard, the victim testified that defendant choked her for two to three minutes and that she blacked out while he was doing it. The choking left her unable to lift her head or swallow, caused hematomas in her eyes and impaired her vision for several days. A pathologist explained that the victim lost consciousness because the blood supply to her brain had been cut off from the choking and that, had defendant not released her, she would have died a minute or two later. The pathologist further testified that his review of the victim’s medical records and photographs led him to believe that she had sustained injuries more severe than those he had observed in individuals who had actually died as a result of strangulation. Moreover, while the victim’s injuries had largely healed by the time of trial in

We do find that the conviction for attempted assault in the first degree cannot stand. Defendant was charged under the theory that, during the course of the kidnapping, he attempted to cause serious physical injury when he choked the victim a second time after she made an abortive effort to get help (see Penal Law § 120.10 [4]). An attempt to commit a crime requires that a person, “with intent to commit a crime, . . . engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). In contrast, felony assault punishes a felon for the actual consequences of his or her actions, and “there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended” (People v Campbell, 72 NY2d 602 , 605 [1988]; see People v Hendrix, 56 AD2d 580 , 581 [1977], affd 44 NY2d 658 [1978]; People v Hassin, 48 AD2d 705 , 705 [1975]). Accordingly, notwithstanding the fact that defendant did not advance this specific issue in his appellate brief, the count of the indictment charging him with attempted felony assault is jurisdictionally defective and must be dismissed (see People v Burress, 122 AD2d 588 , 589 [1986], lv denied 68 NY2d 810 [1986]; see also People v Bethea, 61 AD3d 1016 , 1017 [2009]).

Defendant next contends that his statement to investigators should have been suppressed because a martial arts instructor he requested to be with him during the interrogation — who also happened to be a detective sergeant with the St. Lawrence County Sheriffs Department — induced him to confess. County Court appropriately found that the instructor was not acting as an agent of the police and, in any event, defendant was administered Miranda warnings before the interrogation began

We have examined defendant’s remaining claims and find them to be unpersuasive.

Lahtinen, J.P., Garry and Devine, JJ., concur.

Ordered that the judgment rendered May 14, 2012 is modified, on the law, by reversing defendant’s conviction of attempted assault in the first degree under count 6 of the indictment; said count dismissed and the sentence imposed thereon vacated; and, as so modified, affirmed. Ordered that the judgment rendered October 4, 2012 is affirmed.