                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 5, 2017                   107048
________________________________

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

THOMAS RYDER,
                    Appellant.
________________________________


Calendar Date:   November 22, 2016

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

                             __________


     Carolyn B. George, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered May 13, 2014, convicting defendant
following a nonjury trial of the crimes of attempted murder in
the second degree, strangulation in the first degree,
strangulation in the second degree and assault in the second
degree (two counts).

      Defendant was charged in a six-count indictment with one
count of attempted murder in the second degree, one count of
strangulation in the first degree, two counts of strangulation in
the second degree and two counts of assault in the second degree.
The charges stem from defendant's May 23, 2013 beating of his 65-
year-old mother (hereinafter the victim). Defendant waived a
jury trial and County Court found defendant guilty of attempted
                              -2-                107048

murder in the second degree, strangulation in the first degree,
strangulation in the second degree and both counts of assault in
the second degree. He was sentenced to an aggregate prison term
of 21 years with five years of postrelease supervision.

      Defendant argues that the verdict was not supported by
legally sufficient evidence and was against the weight of the
evidence. "In determining legal sufficiency, we view the
evidence in the light most favorable to the People and give them
the benefit of every favorable inference. We will not disturb
the verdict if the evidence demonstrates a valid line of
reasoning and permissible inferences that could lead a rational
person to the conclusion reached by the jury. When we conduct a
weight of the evidence review, if we are satisfied that a
different verdict would not have been unreasonable, we
independently assess the relative probative force of conflicting
testimony and the relative strength of conflicting inferences
that may be drawn from the testimony" (People v Baltes, 75 AD3d
656, 658 [2010] [internal quotation marks and citations omitted],
lv denied 15 NY3d 918 [2010]).

      On May 23, 2013, at approximately 3:30 a.m., the victim was
in her apartment getting ready to report to work as a hotel
laundry attendant. Three days earlier, she had agreed to let
defendant, her 45-year-old son, stay in her spare bedroom for a
few days following his 15-year absence. She ventured from her
bedroom into the living room to turn off the television.
Defendant was sleeping on the couch and when she tried to turn
the television off, she accidentally knocked a DVD player onto
the floor, waking defendant. Defendant rose up and stared at
her. He pushed the victim to the floor, causing her to strike
her shoulder and head. After she got up, he ordered her to sit
on the couch and watch a movie. He informed her that he was
going to get a gun and kill her. When she tried to leave, he
punched her in the face causing her to land on her back.
Defendant jumped on top of her and began punching her in the face
and head with his fists. He dragged her around the room by her
hair, then stomped on her with his feet, and kicked her in the
breast, stomach, wrists and legs. Defendant retrieved a pair of
headphones from his bedroom and started beating the victim in the
mouth with them. He tried to open her mouth and shove them down
                              -3-                107048

her throat, raking them across her teeth. He put his hand around
the victim's throat and choked her while she begged for her life.
She was unable to breathe and believed that she was dying,
testifying at trial that "it all went black." When she opened
her eyes, she saw that defendant was standing by the bedroom with
his back to her. The victim escaped the apartment and, as she
was walking down the street toward the police station in her
nightgown, a cab driver stopped and drove her to the police
station. She was transported to the hospital and, upon
examination, found to have sustained swelling to her right eye, a
broken right arm, three distinct fractures to the right side of
her face, a subconjunctive hemorrhage in the inner eye and
extensive bruising on her face, neck, torso and legs. At trial,
defendant admitted that he grabbed and punched a person in the
apartment that morning, believing the person to be an intruder.
He ultimately admitted that the person he attacked was his
mother, but asserted that he did not realize it at the time. He
also denied ever strangling her, using headphones to beat her or
trying to kill her.

      Defendant's challenge to the conviction of attempted murder
in the second degree centers on the fact that the victim was
treated and released from the hospital the same day and that
there was no proof of a need for follow-up medical care. A
person is guilty of murder in the second degree, when, with an
intent to kill, that person causes the death of another person
(see Penal Law § 125.25 [1]). A person is guilty of an attempt
to commit a crime, when, with specific intent to commit such a
crime, that person "engages in conduct which tends to effect the
commission of such crime" (Penal Law § 110.00). The "'intent to
kill may be inferred from the surrounding circumstances and a
defendant's actions'" (People v Stanford, 130 AD3d 1306, 1308
[2015], lv denied 26 NY3d 1043 [2015], quoting People v Hamilton,
127 AD3d 1243, 1245 [2015], lvs denied 25 NY3d 1164 [2015]). The
proof must show that the defendant "engaged in conduct that came
dangerously near commission of the completed crime" (People v
Kassebaum, 95 NY2d 611, 618 [2001] [internal quotation marks
omitted], cert denied 532 US 1069 [2001]).
      The brutal beating and choking of the victim, together with
defendant's threatening words in the course thereof, clearly
demonstrated his intent to kill. Medical testimony established
                              -4-                107048

that the act of strangling a person to the point where the person
loses consciousness is life-threatening due to deprivation of
oxygen and blood flow to the brain. The absence of a long-term
serious injury to a victim does not preclude the finding of life-
threatening actions by a defendant (see People v Greenfield, 112
AD3d 1226, 1227-1228 [2013], lv denied 23 NY3d 1037 [2014];
People v Fernandez, 88 NY2d 777, 783 [1996]). Under these
circumstances, we find that the People's proof in support of this
charge was legally sufficient and the verdict was not against the
weight of the credible evidence.

      With regard to count 5 of the indictment, assault in the
second degree, defendant contends that the weight of the evidence
does not establish that he used headphones in the course of the
victim's beating, and that headphones do not constitute a
dangerous instrument as defined in Penal Law § 10.00 (13). As
relevant here, a person is guilty of assault in the second degree
when, "[w]ith intent to cause physical injury to another person,
he [or she] causes such injury to such person . . . by means of a
deadly weapon or a dangerous instrument" (Penal Law § 120.05
[2]). A dangerous instrument is defined as "any instrument,
article or substance . . . which, under the circumstances in
which it is used, . . . is readily capable of causing death or
other serious physical injury" (Penal Law § 10.00 [13]). We
conclude that, in light of the manner in which the headphones
were used, as described by the victim here, they qualify as a
dangerous instrument (see People v Ray, 273 AD2d 611, 613
[2000]). Defendant notes that the victim did not mention the
headphones in her initial report to the police or to the medical
providers and that they were not identified at trial. These
points merely address the credibility of her assertion that the
headphones were used to beat her about the face and mouth. While
a different verdict on this count would not have been
unreasonable in light of defendant's testimony, after considering
the evidence in a neutral light and according due deference to
County Court's credibility determinations, we conclude that the
verdict on this count is not against the weight of the evidence
(see People v Pine, 126 AD3d 1112, 1115-1116 [2015], lv denied 27
NY3d 1004 [2016]).
                              -5-                107048

      Turning to the charge of strangulation in the second
degree, we reject defendant's contention that there was a lack of
evidence of "stupor, loss of consciousness for any period of
time, or any other physical injury or impairment" (Penal Law
§ 121.12). The victim's description of her experience while
defendant was squeezing her throat with his hand confirms her
loss of consciousness since she testified that she "saw black
spots and lights flashing" before "it went all black." She also
testified that she lost bladder function. Medical proof
confirmed how pressure to the throat leads to a loss of
consciousness and loss of bladder control. Further, the
strangulation injuries as described by the victim and the medical
care providers amply established physical injury, which is
defined as "impairment of physical condition or substantial pain"
(Penal Law § 10.00 [9]). Photographs of the victim's neck taken
several days after the attack confirm bruising consistent with
the pressure applied to the victim's neck. We find that this
evidence was sufficient as a matter of law (see People v Carte,
113 AD3d 191, 194 [2013], lv denied 23 NY3d 1035 [2014]). Nor
was the verdict on this charge against the weight of the
evidence, since there was ample basis for County Court to credit
the victim's testimony and the medical proof presented by the
People.

      Finally, we reach the same conclusion as to the proof in
support of the charge of strangulation in the first degree, which
required the People to prove that the victim sustained a "serious
physical injury" (Penal Law § 121.13). To establish this
element, the proof must show an injury "which creates a
substantial risk of death, or which causes death or serious and
protracted disfigurement, protracted impairment of health or
protracted loss or impairment of the function of any bodily
organ" (Penal Law § 10.00 [10]). As noted above, testimony by a
pathologist confirmed that the restriction of blood flow to the
brain to the extent that it causes unconsciousness, impaired
vision and/or loss of motor function is life-threatening. We
find that this evidence was legally sufficient to establish the
element of serious physical injury because it constituted an
impairment of her physical condition creating a substantial risk
of death (see People v McCann, 126 AD3d 1031, 1034 [2015], lv
denied 25 NY3d 1167 [2015]; People v Miller, 290 AD2d 814, 815
                              -6-                  107048

[2002], lv denied 98 NY2d 678 [2002]).

     Garry, J.P., Egan Jr., Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
