People v. Fiore (Marion)

70 Misc. 3d 132(A), 2020 NY Slip Op 51555(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 24, 2020
• Docket: 2018-1785 N CR
• Status: Unpublished

Opinion

People v Fiore (2020 NY Slip Op 51555(U)) [*1]

People v Fiore (Marion)

2020 NY Slip Op 51555(U) [70 Misc 3d 132(A)]

Decided on December 24, 2020

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 24, 2020

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ
2018-1785 N CR

The People of the State of New York, Respondent,

against

Marion Fiore, Appellant.

Nassau County Legal Aid Society (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant. Nassau County District Attorney (Andrea M. DiGregorio and Amanda Manning of counsel), for respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Darlene D. Harris, J.), rendered June 19, 2018. The judgment convicted defendant, upon a jury verdict, of assault in the third degree, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a misdemeanor complaint with assault in the third degree (Penal Law § 120.00 [2]) and supporting depositions were subsequently filed to convert the accusatory instrument to an information (see CPL 100.15 [3]; 100.40 [1]; 170.65 [1]). The complainant, Police Officer Vigna, alleged in the factual portion of the accusatory instrument that, on November 17, 2016, at about 8:27 a.m., defendant recklessly slammed a door on the victim, during an argument concerning reimbursement of rent. The victim sustained pain and suffered a laceration on her forehead. The victim was transported to a hospital for treatment. The incident was witnessed by a neighbor. The supporting deposition of the neighbor alleged that she observed defendant slam the door in the victim's face causing a laceration to the victim's forehead. The neighbor further stated that she applied gauze to help stop the bleeding. The supporting deposition of the victim provides that she was arguing over a deposit check with defendant, her landlady, who refused to return the victim's deposit. After defendant slammed a steel door in the victim's face, she suffered a headache and began bleeding from a two inch laceration on her forehead, which required stitches.

At a jury trial, the victim testified that she was working as a nurse and rented a room in defendant's home. She moved into the premises on October 3, 2016, and, less than two weeks [*2]later, she told defendant that it wasn't working out. Defendant agreed to let her move out of the premises at the end of November. However, she ended up leaving on November 17th, after the situation had gotten worse. When she arrived home from work on the evening prior to the incident, the door to the premises had been dead-bolted and she did not have a key to unlock the door. After knocking on the door, defendant opened the door, called her names and threatened her as she followed her from the door to her room. The following morning, defendant wanted something signed and asked her to take her belongings out of the house. When the victim was standing mostly inside of the threshold of the doorway, she told defendant that if defendant returned the security deposit, she would return the key. After defendant told her that she was not going to return the deposit, the door hit her in the forehead causing her to lose consciousness. The next thing she remembered was seeing blood dripping off her forehead and on her clothing. She felt very dazed and confused. There was no one else present at the time, but her neighbor was watching from the door of her home. Her neighbor came over with gauze to stop the bleeding and called 911. The victim was ultimately taken to the hospital in an ambulance.

Photographs of the victim were admitted into evidence depicting a two-inch laceration on her forehead and the ensuing scar. She received treatment for the wound from a plastic surgery team because it was a deep and jagged cut on her face. The wound was down to the muscle and had to be sewn with ten stitches. The victim testified further that the injury caused her pain. She still experiences headaches, dizziness, short term memory loss, trouble finding words and concentrating. Certified copies of her medical records were admitted into evidence.

Defendant testified that, outside of her home, she told the victim that she was going to prorate the security deposit. When defendant turned to go back into her home, the victim grabbed defendant's wrist. Defendant ran back to her home and, as she closed the door, the victim threw her body on the door to stop it from closing. As the victim was enraged, defendant felt that her life depended on her getting the door closed.

Following the trial, the jury found defendant guilty of assault in the third degree (Penal Law § 120.00 [2]). On appeal, defendant contends, among other things, that the misdemeanor complaint was not properly converted to an information, and that the accusatory instrument is facially defective since it failed to establish that she had acted recklessly or that she had caused a physical injury to the victim. Moreover, defendant argues that the evidence was legally insufficient and the verdict was against the weight of the evidence.

A misdemeanor complaint is deemed to have been converted and replaced by an information where the misdemeanor complaint and the accompanying supporting depositions satisfy the requirements of an information (CPL 170.65 [1]). Additionally, since defendant had not waived her right to prosecution by information (see CPL 170.65 [3]), we must review the sufficiency of the accusatory instrument based on the standard applicable to an information (see People v Hatton, 26 NY3d 364, 368-369 [2015]). As defendant never moved pretrial to dismiss the accusatory instrument, in order for it to be facially sufficient, the "allegations of the factual part of the information and/or of any supporting depositions [must] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see CPL 100.15 [3]; People v Dumay, 23 NY3d 518, 522 [2014]; People v Kalin, 12 NY3d 225 [2009]).

"A person is guilty of assault in the third degree when . . . [sh]e recklessly causes physical [*3]injury to another person" (Penal Law § 120.00 [2]). "A person acts recklessly . . . when [s]he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]). A culpable mental state is generally to be inferred from the defendant's conduct and the surrounding circumstances (see People v Rodriguez, 17 NY3d 486, 489 [2011]; People v Bracey, 41 NY2d 296, 301 [1977]; People v O'Neill, 49 Misc 3d 132[A], 2015 NY Slip Op 51440[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Here, it can be inferred from the facts alleged in the information and the supporting depositions, that defendant acted recklessly, in that she consciously disregarded a substantial and unjustifiable risk of physical injury to the victim by precipitously slamming the steel door shut.

Physical injury is defined as an "impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]). "[S]ubstantial pain cannot be defined precisely, but . . . it is more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007] [internal quotation marks omitted]). Yet, the "[p]ain need not . . . be severe or intense to be substantial" (id.). Moreover, an accusatory instrument need not detail the extent of a complainant's injuries (see People v Henderson, 92 NY2d 677, 681 [1999]). Indeed, at the pleading stage, that information might not even be known yet (id. at 680-681). Determining whether either the duration or the severity of the pain rose to the necessary level is a matter for the finder of fact at trial (see People v Rojas, 61 NY2d 726, 727 [1984]; see also People v Krotoszynski, 43 AD3d 450, 452-453 [2007]; People v Coward, 100 AD2d 628 [1984]). Here, the factual allegations contained in the information together with the supporting depositions were sufficient to establish that the victim sustained a physical injury so as to make out a prima facie case of assault in the third degree (see CPL 100.15 [3]; 100.40 [1]; see also People v Henderson, 92 NY2d at 681; People v Mercado, 94 AD3d 502 [2012]; People v Johnson, 48 Misc 3d 130[A], 2015 NY Slip Op 51023[U] [App Term, 1st Dept 2015]; People v Lexus M., 45 Misc 3d 127[A], 2014 NY Slip Op 51455[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Caniglia, 2 Misc 3d 134[A], 2004 NY Slip Op 50188[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004]).

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that the foregoing evidence was legally sufficient to establish defendant's guilt of assault in the third degree (see Penal Law § 120.00 [2]) beyond a reasonable doubt. Furthermore, upon the exercise of this court's factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), while according great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdict was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).

The remaining contentions raised by defendant either lack merit or are not properly before this court (see People v Boone, 84 AD3d 1108 [2011]; People v Gantt, 77 AD3d 988, 989 [2010]).

Accordingly, the judgment of conviction is affirmed.

ADAMS, P.J., RUDERMAN and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 24, 2020