                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 30, 2014                    104646
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

WILLIAM ROBINSON,
                    Appellant.
________________________________


Calendar Date:   September 4, 2014

Before:   Peters, P.J., Stein, Garry, Lynch and Devine, JJ.

                              __________


     Timothy S. Brennan, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Gerald A.
Dwyer of counsel), for respondent.

                              __________


Devine, J.

      Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered August 24, 2011, upon a verdict
convicting defendant of the crime of assault in the first degree.

      After leaving his sister's residence, the victim was
approached on the street by two unknown men, one of whom
repeatedly slashed the victim in the face with a box cutter.
Approximately one month later, the victim observed defendant
walking down a street and flagged down a police officer, showed
the officer a police incident report detailing the attack and
provided a description of the assailant. Shortly thereafter,
defendant, who matched the victim's description, was detained on
the street by another police officer and produced a box cutter
that appeared to have dried blood on the blade. The victim
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confirmed to the police officers that defendant was the
individual who had attacked him.

      Defendant was indicted on two counts of assault in the
first degree and, following a jury trial, convicted of one count.
Defendant's posttrial motion to set aside the verdict was denied
and County Court sentenced defendant, as a second felony
offender, to 10 years in prison, followed by five years of
postrelease supervision. Defendant now appeals.

      Initially, defendant argues that the jury's verdict was not
supported by legally sufficient evidence and was against the
weight of the evidence. A verdict is supported by legally
sufficient evidence when "there is any valid line of reasoning
and permissible inferences which could lead a rational person to
the conclusion reached by the jury on the basis of the evidence
at trial" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People
v Johnson, 24 AD3d 803, 804 [2005]). The People were required to
prove, beyond a reasonable doubt, that defendant, "[w]ith intent
to cause serious physical injury[,] . . . cause[d] such injury
. . . by means of a deadly weapon or a dangerous instrument"
(Penal Law § 120.10 [1]). Specifically, defendant asserts that
the People failed to prove the elements of intent and serious
physical injury and, further, failed to disprove his
justification defense.

      The victim testified that defendant approached him and
asked "what's poppin' Blood" and then, without provocation,
slashed his face repeatedly with a box cutter. Conversely,
defendant testified that the victim and another individual came
up to him and asked how much money he had on him. Defendant
further averred that he warned the men to "back up" and pulled a
box cutter out of his pocket and, after the victim struck
defendant in the head with a metal pipe, defendant swung outward
with the box cutter and slashed the victim in the face. The
parties did stipulate during trial that the blood residue found
on defendant's box cutter was that of the victim. Defendant's
fiancee, Ericka Ferguson, took the stand in an attempt to
corroborate defendant's version of the incident, however, her
credibility was greatly diminished when the People inquired about
telephone conversations that she had with defendant while he was
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detained in jail following his arrest, during which they
attempted to fabricate a different justification defense. In
particular, after the People had to refresh her recollection
several times during cross-examination, Ferguson eventually
conceded that she and defendant concocted a false version of the
incident in which she, defendant and their young child were
approached by a group of five men, including the victim who was
wielding a box cutter, during a robbery attempt, forcing
defendant to wrestle the instrument away from the victim to
defend himself and his family.

      As far as the victim's injuries are concerned, the victim's
treating physician testified that the lacerations to the victim's
cheek, nose and eyebrow required 29 external stitches and four
internal stitches and left significant permanent scarring, which
the jury observed during the victim's testimony and properly
found constituted "'serious and protracted disfigurement'"
(People v Powell, 101 AD3d 1369, 1370 [2012], lv denied 21 NY3d
1019 [2013], quoting Penal Law § 10.00 [10]; compare People v
Brown, 100 AD3d 1035, 1035-1036 [2012], lv denied 20 NY3d 1009
[2013]; People v Gray, 30 AD3d 771, 772-773 [2006], lv denied 7
NY3d 848 [2006]). Viewing this evidence in a light most
favorable to the People, we find that it was legally sufficient
to result in defendant's conviction (see People v Ramos, 19 NY3d
133, 136 [2012]; People v Jau Kud Su, 239 AD2d 703 [1997], appeal
denied 90 NY2d 940 [1997]). Further, although it was provided
with a justification defense instruction prior to its
deliberations, the jury obviously rejected defendant's contention
that the use of deadly physical force against the victim, who
defendant maintained was the initial aggressor, was done in self-
defense and found, instead, that defendant intended to cause
serious physical injury to the victim (see People v Dale, 115
AD3d 1002, 1006 [2014]; People v Fisher, 89 AD3d 1135, 1137-1138
[2011], lv denied 18 NY3d 883 [2012]; People v Pine, 82 AD3d
1498, 1500 [2011], lv denied 17 NY3d 820 [2011]). Even if a
different outcome would have been reasonable under the facts of
this case, assessing the trial evidence in a neutral light and
according great deference to the jury's credibility
determinations, we find that the verdict was not contrary to the
weight of the evidence (see People v Johnson, 107 AD3d 1161, 1162
[2013], lv denied 21 NY3d 1075 [2013]; People v Estella, 107 AD3d
                              -4-                104646

1029, 1031 [2013], lv denied 21 NY3d 1042 [2013]; People v
Mitchell, 57 AD3d 1308, 1309-1310 [2008]).

      Defendant further asserts that County Court erroneously
limited the jury's consideration of evidence of the victim's
history of attempted armed robberies for impeachment purposes.
Proof of a victim's previous crimes is admissible to impeach his
or her credibility or – where a defendant was aware of prior,
similar violent acts committed by the victim – for the purpose of
demonstrating that the defendant's acts of self-defense were
justified (see Matter of Robert S., 52 NY2d 1046, 1048 [1981];
People v Miller, 39 NY2d 543, 549-550 [1976]). Here, it is
uncontroverted that defendant did not know the victim or have any
awareness of the victim's previous robberies or other violent
conduct. The victim's extensive criminal history was explored in
great detail during cross-examination and, although defendant
insisted that he resorted to use of his box cutter only after the
victim attempted to rob him while armed with a metal pipe, we
discern no error in County Court's instruction that the jury only
consider the victim's crimes in making its credibility
determinations and not as evidence that the victim had a
propensity for violence (see People v Watson, 20 NY3d 1018, 1020
[2013]; People v DiGuglielmo, 258 AD2d 591, 592 [1999], lv denied
93 NY2d 923 [1999]), and we decline to grant defendant's request
to modify the long-standing precedent on this issue.

      Moreover, we find unavailing defendant's claim that his
constitutional right to confront witnesses was violated when
County Court ruled that the victim could refuse to answer
questions regarding the nature of pending criminal charges
against him in light of the victim's invocation of his 5th
Amendment privilege against self-incrimination. During cross-
examination, defense counsel was given great latitude in
questioning the victim about his outstanding criminal charges,
yet the court properly exercised its discretion when it limited
the scope of such questions to those tending to affect the
victim's credibility (see People v Siegel, 87 NY2d 536, 544
[1995]; People v Hickman, 60 AD3d 865, 866 [2009], lv denied 12
NY3d 916 [2009]).
                              -5-                104646

      Next, as to the argument that the victim's identification
of defendant and the evidence that resulted from the improper
detention and search of defendant should have been suppressed, we
find such assertion to be without merit. After spotting his
assailant on the street approximately one month after the attack,
the victim stopped a nearby police officer to report that
defendant had previously attacked him, showed the officer his
facial lacerations and the police report detailing the assault
and described defendant's skin coloring and clothing. Where, as
here, a "complainant flags down a police officer and then points
to the attacker[] on the street," it cannot be said that the
initial identification of the defendant was anything other than
spontaneous (People v Dixon, 85 NY2d 218, 223 [1995]). As the
police officer subsequently observed a man matching the victim's
description walking in the area where the victim had directed
him, sufficient cause existed to warrant the detention and
questioning of defendant (see People v Robinson, 101 AD3d 1245,
1245-1246 [2012], lv denied 20 NY3d 1103 [2013]; People v Rose,
72 AD3d 1341, 1344-1345 [2010], lv denied 16 NY3d 745 [2011]),
and the police officer's placement of defendant in handcuffs in
an effort to promote his personal safety was proper under the
circumstances (see People v Stroman, 107 AD3d 1023, 1024 [2013],
lv denied 21 NY3d 1046 [2013]; People v Terry, 2 AD3d 977, 978-
979 [2003], lv denied 2 NY3d 746 [2004]). Contrary to
defendant's insistence that the victim's confirmatory
identification – made while defendant was placed in handcuffs –
was improper, the record reveals that the victim's identification
was free from any undue suggestion or prodding by the police
officers (see People v Wicks, 73 AD3d 1233, 1235 [2010], lv
denied 15 NY3d 857 [2010]; People v Mathis, 60 AD3d 1144, 1146
[2009], lv denied 12 NY3d 927 [2009]).

      Nor do we determine that County Court erred in denying,
following a hearing, defendant's CPL 330.30 motion to set aside
the verdict based upon the discovery of new evidence. The
evidence offered in support of the motion was highly
contradictory and included an affidavit from a relative of the
victim who averred, among other things, that the victim admitted
to having attempted to rob defendant, but was unsuccessful in
doing so. The witness, however, later recanted the statement. A
second affidavit came from a prison inmate who similarly claimed
                              -6-                  104646

that the victim had admitted instigating the incident with
defendant. However, despite adjournments of the hearing on
defendant's application, the inmate witness, who was then subject
to pending criminal charges, was not made available for cross-
examination. Ultimately, as the newly discovered evidence was
proffered to impeach witness testimony or otherwise contradict
evidence presented during trial, we cannot agree with defendant's
assertion that the court's denial of the motion was improper (see
People v Crawson, 56 AD3d 1051, 1053 [2008], lv denied 12 NY3d
757 [2009]; People v Bowers, 4 AD3d 558, 560 [2004], lv denied 2
NY3d 796 [2004]; People v Hayes, 295 AD2d 751, 752 [2002], lv
denied 98 NY2d 730 [2002]).

      Defendant's remaining arguments have been considered and
found to be lacking in merit.

     Peters, P.J., Stein, Garry and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
