                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 12, 2015                    104733
________________________________

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

TWALESHA PINE,
                    Appellant.
________________________________


Calendar Date:   January 13, 2015

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

                             __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


Egan Jr., J.

      Appeal from a judgment of the County Court of Albany County
(Breslin, J.), rendered January 12, 2011, upon a verdict
convicting defendant of the crimes of attempted assault in the
first degree, assault in the second degree, criminal possession
of a weapon in the fourth degree and endangering the welfare of a
child (three counts).

      In or about 2001 or 2002, the victim began what she
characterized as an on-and-off relationship with Peter Davis, who
subsequently fathered the eldest of the victim's two daughters.
Although Davis thereafter became involved with defendant, the
victim and Davis remained cordial and, on the afternoon of May
24, 2010, the victim and her daughters – then four years old and
                               -2-                104733

two months old – went to Davis' apartment for what she contended
was a prearranged visit. Upon arriving, Davis advised the victim
that defendant and her young daughter, the latter of whom also
was fathered by Davis, were present in the apartment.

      According to the victim, as she placed her infant daughter
on the floor of the apartment in a car seat, defendant began
muttering to herself – questioning the paternity of the victim's
eldest child. A verbal altercation ensued, during the course of
which, the victim testified, defendant went into the kitchen,
opened a cabinet, pulled out a folding knife with a blade
measuring approximately five inches in length and approached the
victim and said, "Let's go outside, bitch" – adding, "[I]f we
were in Jamaica I would have stabbed you by now or killed you."
At this point, according to the victim, Davis, who had been in
the shower, entered the room and attempted to intervene. When
defendant kicked over the car seat containing the victim's infant
daughter, the victim reached for defendant and Davis restrained
her. As Davis was holding the victim's wrists, defendant reached
around Davis and began stabbing the victim, ultimately striking
her in the head, neck, chest and back. The victim initially was
evaluated at Albany Memorial Hospital but, due to the potentially
serious nature of her neck wound, subsequently was transferred to
a trauma center for further evaluation.

      Defendant thereafter was indicted and charged with
attempted assault in the first degree, assault in the second
degree, criminal possession of a weapon in the fourth degree and
three counts of endangering the welfare of a child.1 Following a
jury trial, defendant was convicted as charged2 and thereafter


     1
        Davis apparently was charged with unlawful imprisonment
as a result of this incident.
     2
        Although count 2 of the indictment charging assault in
the second degree incorporated the statutory language set forth
in Penal Law § 120.05 (2) (intent to cause physical injury by
means of a dangerous instrument), it erroneously cited Penal Law
§ 120.05 (1) (intent to cause serious physical injury).
Following the close of proof, the People moved to amend the
                              -3-                104733

was sentenced upon her conviction of attempted assault in the
first degree to 3½ years in prison followed by 2½ years of
postrelease supervision and to lesser, concurrent prison terms as
to the remaining counts. This appeal by defendant ensued.

      We affirm. Inasmuch as defendant failed to renew her
motion to dismiss at the close of all proof, her challenge to the
legal sufficiency of the evidence is not preserved for our review
(see People v Robinson, 123 AD3d 1224, 1225 [2014]). "That said,
our weight of the evidence [analysis] necessarily involves an
evaluation of whether all elements of the charged crime[s] were
proven beyond a reasonable doubt at trial" (People v Menegan, 107
AD3d 1166, 1169 [2013] [internal quotation marks and citations
omitted]).

      Insofar as is relevant here, "[a] person is guilty of
assault in the first degree when . . . [w]ith intent to cause
serious 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 § 120.10 [1]). As applied to
the matter before us, a serious physical injury includes a
"physical injury which creates a substantial risk of death"
(Penal Law § 10.00 [10]), and a dangerous instrument includes
"any instrument, . . . 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 Johnson, 107 AD3d
1161, 1163 [2013], lv denied 21 NY3d 1075 [2013]). "Where the
defendant is charged with an attempt crime, he or she need not
succeed in causing a serious physical injury; rather, all that is
required is that the defendant intended such injury and engaged
in conduct directed at accomplishing that objective" (People v


indictment to correct this typographical error, and defense
counsel consented to this amendment. As a result, the jury was
charged – and correctly so – as to the elements of assault in the
second degree under Penal Law § 120.05 (2), and defendant was
convicted accordingly. This typographical error was repeated,
however, in both the presentence investigation report and the
uniform sentence and commitment form (see infra).
                              -4-                104733

Argon, 106 AD3d 1126, 1128 [2013], lv denied 21 NY3d 1013 [2013]
[internal quotation marks and citation omitted]; see Penal Law
§ 110.00; People v Johnson, 107 AD3d at 1162-1163). The
requisite intent, in turn, may be inferred from the surrounding
circumstances, including the defendant's "conduct and remarks"
(People v Johnson, 107 AD3d at 1163; see People v Andrews, 78
AD3d 1229, 1231 [2010], lv denied 16 NY3d 827 [2011]). Thus, in
order to find defendant guilty of attempted assault in the first
degree, the People were required to prove that defendant intended
to a inflict serious physical injury and engaged in conduct
toward the victim that could have resulted in such injury through
the use of a dangerous instrument (see generally People v Tucker,
91 AD3d 1030, 1032 [2012], lv denied 19 NY3d 1002 [2012]).3

      Although no knife was recovered and no blood was found
either in the apartment or on defendant's person, the victim
testified that, following a verbal altercation, defendant walked
to the kitchen in Davis' apartment, obtained a folding knife with
a five-inch blade, invited the victim to step outside, indicated
that she would have stabbed or killed the victim already if they
were in defendant's country of origin and thereafter proceeded to
reach around Davis – who by then had intervened in the
altercation – to repeatedly stab the victim with the knife,
striking her in the head, neck, back and chest. As to the
injuries sustained, the People offered the testimony of the
emergency room physician who evaluated the victim upon her
arrival at Albany Memorial Hospital. While the physician
ultimately characterized two of the four wounds sustained by the
victim as superficial, the physician also testified that three of


    3
        The fact that the injuries ultimately sustained by the
victim may have only qualified as physical injuries (see Penal
Law § 10.00 [9] [impairment of physical condition or substantial
pain]) – as opposed to serious physical injuries (see Penal Law
§ 10.00 [10]) – is of no moment. All that is required to sustain
a conviction of attempted assault in the first degree is proof
that the defendant "intended to inflict serious physical injury
and engaged in conduct toward the victim that could have resulted
in serious physical injury . . . through use of a . . . dangerous
instrument" (People v Tucker, 91 AD3d at 1032 [emphasis added]).
                              -5-                104733

the four wounds had the potential to penetrate the victim's
thoracic cavity and that, given the proximity of the victim's
neck wound to her jugular vein and carotid artery (as depicted in
the photographs contained in the record), any number of bodily
structures (including the victim's lungs and trachea) or
significant blood vessels could have been compromised, thereby
warranting transferring the victim to a trauma center.

      Defendant denied any involvement in the stabbing, disavowed
any knowledge of a knife and contended that it was the victim who
initiated the physical altercation, and both she and Davis –
citing the lack of blood either in the apartment or on defendant
herself – suggested that the victim's wounds were self-inflicted.
This conflicting testimony, however, presented a credibility
issue for the jury to resolve (see People v Foulkes, 117 AD3d
1176, 1177 [2014], lv denied 24 NY3d 1084 [2014]; People v
Fernandez, 106 AD3d 1281, 1285-1286 [2013]). While a different
verdict would not have been unreasonable, viewing the evidence in
a neutral light and giving due deference to the jury's
credibility determinations, we cannot say that the jury failed to
accord the evidence the weight that it deserved (see People v
Johnson, 107 AD3d at 1163). Accordingly, we discern no basis
upon which to disturb the verdict convicting defendant of
attempted assault in the first degree. We reach a similar
conclusion with respect to defendant's conviction of assault in
the second degree, which required the People to establish that,
with intent to cause physical injury to the victim, defendant
caused such injury by means of a dangerous instrument (see Penal
Law § 120.05 [2]).

      To the extent that defendant contends that her conviction
of criminal possession of a weapon in the fourth degree also is
against the weight of the evidence, we disagree. "A person is
guilty of criminal possession of a weapon in the fourth degree
when . . . [h]e [or she] possesses any . . . dangerous knife
. . . or any other dangerous or deadly instrument or weapon with
intent to use the same unlawfully against another" (Penal Law
§ 265.01 [2]). As noted previously, a dangerous instrument
encompasses "any instrument, . . . 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
                              -6-                104733

physical injury" (Penal Law § 10.00 [13]), and a knife qualifies
as a "dangerous knife" within the meaning of Penal Law § 265.01
(2) "when the circumstances of its possession, including the
behavior of its possessor, demonstrate that the possessor . . .
considered it a weapon" (People v Jackson, 38 AD3d 1052, 1054
[2007], lv denied 8 NY3d 986 [2007] [internal quotation marks and
citation omitted]). Notably, "[a] defendant's mere possession of
[a knife], while displaying it in an effort to instill fear, [is]
itself presumptive evidence of his [or her] intent to use it
unlawfully" (People v Taylor, 118 AD3d 1044, 1047 [2014], lv
denied 23 NY3d 1043 [2014] [internal quotation marks and
citations omitted]). Contrary to defendant's assertion, "the
fact that the knife held by defendant during the incident was not
recovered does not render . . . the verdict against the weight of
the evidence" (People v Cohens, 81 AD3d 1442, 1444 [2011], lv
denied 16 NY3d 894 [2011]) and, based upon the testimony
previously recounted, we cannot say that the jury failed to
accord the evidence the weight that it deserved with respect to
this charge.

      Defendant's remaining contentions, including her assertion
that the verdict convicting her of endangering the welfare of a
child (three counts) was against the weight of the evidence and
that the sentence imposed was harsh and excessive, have been
examined and found to be lacking in merit. That said, although
the judgment of conviction is affirmed, the uniform sentence and
commitment form erroneously indicates that defendant was
convicted of assault in the second degree under Penal Law
§ 120.05 (1) instead of Penal Law § 120.05 (2) (see n 1, supra).
Accordingly, this matter is remitted so that such document may be
amended to accurately reflect the appropriate subdivision under
which defendant was convicted (cf. People v Jones, 112 AD3d 991,
992 [2013], lv denied 23 NY3d 1039 [2014]).4



    4
        Inasmuch as there is no indication that County Court
relied upon the erroneous information contained in the
presentence investigation report in imposing sentence, remittal
to amend this report is not required (see People v Judd, 111 AD3d
1421, 1423 [2013], lv denied 23 NY3d 1039 [2014]).
                              -7-                  104733

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



      ORDERED that the judgment is affirmed, and matter remitted
for entry of an amended uniform sentence and commitment form.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
