People v. Jones

State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 18, 2016 106477

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ANDREW JONES,

Appellant.

________________________________

Calendar Date: January 8, 2016

Before: Peters, P.J., Garry, Egan Jr. and Clark, JJ.

__________

Bruce Evans Knoll, Albany, for appellant.

P. David Soares, District Attorney, Albany (Michael C.

Wetmore of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Albany County

(Ryan, J.), rendered July 18, 2001, upon a verdict convicting

defendant of the crime of assault in the second degree.

During the early morning hours of October 6, 2000,

defendant1 and two of his friends – Julio Vazquez and Wayne

1

Although defendant was indicted as Andrew Jones, the

People subsequently discovered that defendant's true name was

Andrew James. At trial, County Court granted the People's oral

motion to amend the indictment, but various posttrial materials

in the record on appeal, including correspondence from the

Department of Corrections and Community Supervision, nonetheless

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Holmes – were patrons at a bar in the City of Albany. While

there, defendant paid a dancer $20 for a lap dance. Apparently

dissatisfied with the dancer's performance, defendant began to

quarrel with her, prompting the establishment's owner, Daniel

Cadalso, to intervene. Although Cadalso issued defendant a

refund, defendant remained irate, stating that "he was going to

shoot the place up" and generally "making a huge scene in front

of the whole bar." Cadalso enlisted the assistance of Vazquez in

an effort to remove defendant from the premises, but Vazquez

assured Cadalso that everything was under control; defendant, who

had just ordered a drink from the bar, was not inclined to leave.

Cadalso then went to speak with Christopher Disonell, who

was working the door at the club, and apprised him of the

situation. As Cadalso and Disonnell were speaking, defendant

approached and launched into another verbal tirade, during the

course of which Holmes charged Cadalso and pinned him against the

wall while Vazquez blocked the exit. Following a brief struggle,

Cadalso broke free, ran outside and called 911. Meanwhile,

defendant approached Disonell, leaned in and said that "he was

going to stick [Disonell]." Believing that he "was going to get

stabbed," Disonell punched defendant in the face and thereafter

was struck on the right side of his face with a beer bottle

wielded by Holmes. Immediately thereafter, defendant struck

Disonell on the left side of his face with "[a] mixed drink

glass." Both the beer bottle and the drink glass broke upon

impact, cutting Disonell's face and sending blood "all over the

place." Disonell then went to the bathroom and attempted to stop

the bleeding. Cadalso, who still was outside on the phone with

the police, saw defendant, Holmes and Vazquez exit the club and

climb into "a big, white, flatbed towing vehicle."

When Cadalso reentered the establishment, he observed

"[b]roken glass, broken chairs and a lot of blood." Cadalso then

refer to defendant as Andrew Jones. For that reason, we have

captioned this matter in accordance with defendant's name as it

appeared on the underlying indictment. There is, however, no

question that defendant and Andrew James are one and the same

person.

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went in search of Disonell, whom he found – "cut pretty bad" – in

the bathroom holding a towel to his face. According to Cadalso,

Disonell had "[d]eep – very deep, wide-open lacerations in both

his cheeks and a big, deep cut . . . on the bridge of his nose"

and "was really, really bleeding profusely." Cadalso drove

Disonell to a local hospital,2 following which Cadalso returned

to the scene and identified defendant, Holmes and Vazquez as the

individuals involved in the disturbance at the club. Defendant

and Holmes then were placed under arrest.

As a result of this incident, defendant was indicted and

charged in December 2000 with assault in the second degree.3

Following a jury trial in April 2001, defendant was found guilty

as charged and thereafter was sentenced, as a second felony

offender, to seven years in prison followed by five years of

postrelease supervision. This appeal by defendant ensued.4

2

A member of the Albany Police Department, who saw

Disonell at the hospital, offered a similar assessment of

Disonell's injuries, stating, "He was sliced up very badly. Both

sides of his nose had pretty big gashes and into his cheek area."

3

According to the People, Holmes separately pleaded guilty

to assault in the second degree for his role in the attack.

4

Although defendant filed a notice of appeal in July 2001,

defendant, for reasons that are not apparent from the record, did

not perfect his appeal in this Court until June 2015. The People

did not move to dismiss the appeal in the interim, and this

Court's rule regarding the abandonment of criminal appeals (see

22 NYCRR 800.14 [j]) did not go into effect until July 28, 2014 –

after the point in time when this Court, among other things,

granted defendant's motion for permission to proceed as a poor

person and for the assignment of counsel. As for the underlying

delay, defense counsel acknowledged at oral argument that, while

this appeal was pending, defendant was convicted of murder in the

second degree – for which he is serving a lengthy term of

imprisonment – and suggested that the delay in pursuing the

instant appeal was attributable to that intervening criminal

matter.

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Defendant first asserts that he was deprived of a fair

trial due to the People's intermingling of the proof relative to

Holmes' and defendant's respective actions on the morning in

question. Specifically, defendant contends that the People

failed to sufficiently differentiate between the injuries to the

right and left sides of Disonell's face, thereby raising the

possibility that defendant was indicted for – and ultimately was

convicted of – a crime that he did not actually commit. We

disagree. The grand jury minutes, as well as the trial

transcript – from the opening statements, to the testimony

offered by Cadalso and Disonell, to the People's closing argument

– reflect that the People drew a clear distinction between both

the injuries that Disonell received to the right and the left

sides of his face and the individuals who caused such injuries.

Accordingly, we are satisfied that defendant was "tried and

convicted of only those crimes and upon only those theories

charged in the indictment" (People v Wilson, 61 AD3d 1269, 1271

[2009] [internal quotation marks and citations omitted], lv

denied 14 NY3d 774 [2010]).

Although defendant's present challenge to the legal

sufficiency of the evidence is unpreserved for our review, "our

weight of the evidence review necessarily involves an evaluation

of whether all elements of the charged crime were proven beyond a

reasonable doubt at trial" (People v Burch, 97 AD3d 987, 989 n 2

[2012] [internal quotation marks and citations omitted], lv

denied 19 NY3d 1101 [2012]). In this regard, "[a] person is

guilty of assault in the second degree when . . . [h]e [or she]

recklessly causes serious physical injury to another person by

means of a deadly weapon or a dangerous instrument" (Penal Law

§ 120.05 [4]; see People v Heier, 90 AD3d 1336, 1337 [2011], lv

denied 18 NY3d 994 [2012]). "Serious physical injury" includes,

insofar as is relevant here, "serious and protracted

disfigurement" (Penal Law § 10.00 [10]), and a "[d]angerous

instrument" is defined as "any instrument, article or substance,

. . . which, under the circumstances in which it is used,

attempted to be used or threatened to be used, is readily capable

of causing death or other serious physical injury" (Penal Law

§ 10.00 [13]; see People v Griffith, 254 AD2d 753, 753-754 [1998]

[10-ounce bar glass qualifies as a dangerous instrument]).

Finally, a person acts "recklessly" when he or she "is aware of

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and consciously disregards a substantial and unjustifiable risk

that [a] result will occur" (Penal Law § 15.05 [3]; see People v

Gallo, 133 AD3d 1088, 1089 [2015]). Specifically, the risk at

issue "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]; accord People v Briskin, 125 AD3d 1113, 1119 [2015],

lv denied 25 NY3d 1069 [2015]).

Here, defendant primarily disputes the proof adduced with

respect to the "serious physical injury" element of the charged

crime. Specifically, defendant contends that the record as a

whole does not establish that Disonell suffered "serious and

protracted disfigurement" as the result of defendant's actions in

cutting the left side of Disonell's face with the drink glass.

We disagree. Disonell testified – without contradiction – that

he had "plastic surgery" and received 150 stitches to close his

facial wounds. Disonell further testified that he was on

prescription pain medication for approximately one week following

the attack and that he missed three or four weeks of work as a

result thereof. Additionally, a photograph taken shortly after

the assault and admitted into evidence at trial clearly depicts a

significant wound to the left side of Disonell's face, and

Disonell testified at trial (some six months after the incident

occurred) that he had facial scarring as a result of the assault

– specifically, a scar on the left side of his face that was a

"[f]ew inches" long. Finally, the record reflects that Disonell

separately displayed the scars on each side of his face to the

jury. Although Disonell's medical records admittedly did not

shed much light on the extent of his injuries, we nonetheless are

satisfied that the jury's verdict was in accord with the weight

of the evidence.

To the extent that defendant argues that County Court

failed to define "serious and protracted disfigurement" for the

jury, we need note only that defendant neither objected to the

charge as given nor requested additional or different language.

Accordingly, this issue is unpreserved for our review (see People

v Davis, 133 AD3d 911, 914 [2015]). In any event, County Court

can hardly be faulted for failing to provide the jury with the

definition of "serious and protracted disfigurement" set forth in

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People v McKinnon (15 NY3d 311 [2010]) when the Court of Appeals

did not craft that definition until more than nine years after

defendant's jury trial. Defendant's remaining arguments relative

to the jury charge and resulting verdict – including his

assertion that County Court erred in refusing to charge the

lesser included offense of assault in the third degree and that

the jury improperly rejected his justification defense – have

been examined and found to be lacking in merit.

That said, we do find merit to defendant's claim that

County Court erred in denying his Batson challenge with respect

to prospective juror No. 2 and, therefore, we reverse the

judgment and remit this matter for a new trial. As a threshold

matter, we reject the People's assertion that defendant failed to

preserve this issue for our review. "[A] Batson claim can be

raised at any time during the jury selection process" (People v

Perez, 37 AD3d 152, 154 [2007]; see Matter of Robar v LaBuda, 84

AD3d 129, 138 n 6 [2011]). More to the point, the People's

present assertion – that defendant failed to specifically object

to the prosecutor's refusal to provide a race-neutral explanation

for the exclusion of prospective juror No. 2 – "is inconsistent

with the process by which a Batson analysis is made . . .; it is

defendant's objections that give rise to the prosecutor's

obligation to state race-neutral reasons for the disputed

challenges in the first place" (People v Davis, 253 AD2d 634, 635

[1998]).5

As to the merits, where a Batson challenge is raised (see

Batson v Kentucky, 476 US 79 [1986]), the trial court must engage

in a three-step process. "At step one, the moving party bears

the burden of establishing a prima facie case of discrimination

in the exercise of peremptory challenges. Once a prima facie

case of discrimination has been established, the burden shifts,

at step two, to the nonmoving party to offer a facially neutral

explanation for each suspect challenge. At the third step, the

5

In any event, defense counsel did expressly note "that

there ha[d]n't been any race-neutral reason provided" with

respect to prospective juror No. 2.

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burden shifts back to the moving party to prove purposeful

discrimination and the trial court must determine whether the

proffered reasons are pretextual" (People v Hecker, 15 NY3d 625,

634-635 [2010] [internal quotation marks and citations omitted];

see People v Grafton, 132 AD3d 1065, 1066 [2015]).

Here, the record reflects that the People sought to

exercise peremptory challenges to exclude four of the five

nonwhite individuals comprising the second panel of prospective

trial jurors. Indeed, as defense counsel noted, "The only

[nonwhite juror] who was not excluded [from this panel] was the

daughter-in-law of the former Chief of Police of the Albany

Police Department." In response to defense counsel's Batson

challenge, County Court asked the People – "based upon the

peremptory challenges" asserted – to "give a race-neutral reason

. . . for th[o]se selections," thereby implicitly finding that

defendant had made a prima facie showing of discrimination. The

People provided such an explanation as to prospective juror Nos.

4, 6 and 17 but refused to offer a race-neutral explanation as to

prospective juror No. 2, noting that this juror was the first

nonwhite juror that they had sought to exclude by use of a

peremptory challenge. As the prosecuting attorney succinctly put

it, "I shouldn't be made to give a reason for the first one."

Defense counsel took issue with the People's lack of a race-

neutral explanation for the exclusion of this juror, noting that

"the fact that [prospective juror No. 2] was the first person of

color [to be] excluded [was] . . . merely fortuitous." County

Court rejected defendant's argument on this point and allowed the

People to exercise a peremptory challenge to exclude prospective

juror No. 2, as well as prospective juror Nos. 4 and 6.

The foregoing stance – that the People were not required to

provide a race-neutral explanation for seeking to exclude

prospective juror No. 2 because she was the first person of color

upon whom the People sought to exercise a peremptory challenge –

is simply wrong. "The purpose of the Batson rule is to eliminate

discrimination, not minimize it" (People v Bolling, 79 NY2d 317,

321 [1992]). Accordingly, because "[t]he exclusion of any

[nonwhite prospective jurors] solely because of their race is

constitutionally forbidden" (id. at 321 [internal quotation marks

and citation omitted]), a defendant asserting a Batson challenge

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need not show a pattern of discrimination. "Although as part of

their prima facie case parties often rely on numbers to show a

pattern of strikes against a particular group of jurors, a prima

facie case may be made based on the peremptory challenge of a

single juror that gives rise to an inference of discrimination"

(People v Smocum, 99 NY2d 418, 421-422 [2003]; see People v

Morgan, 75 AD3d 1050, 1053 [2010], lv denied 15 NY3d 894 [2010]).

Here, County Court implicitly concluded that defendant had

made a prima facie showing of discrimination as to all four of

the jurors in question, and the burden then shifted to the People

to provide race-neutral explanations for all four — not just

three — of the nonwhite prospective jurors against whom the

People asserted peremptory challenges. Given the People's

failure to provide – and County Court's failure to require – such

an explanation as to all four prospective jurors, defendant is

entitled to a new trial.

Peters, P.J., Garry and Clark, JJ., concur.

ORDERED that the judgment is reversed, on the law, and

matter remitted to the County Court of Albany County for a new

trial.

ENTER:

Robert D. Mayberger

Clerk of the Court