                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 24, 2014                       104645
________________________________

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

ADAM M. HADFIELD,
                    Appellant.
________________________________


Calendar Date:     May 30, 2014

Before:     Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                               __________


         John A. Cirando, Syracuse, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                               __________


Lynch, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered October 7, 2011, convicting
defendant following a nonjury trial of the crime of assault in
the second degree.

      Defendant was convicted, after a nonjury trial, of assault
in the second degree. The charge stemmed from his conduct, while
incarcerated at the St. Lawrence County Correctional Facility, in
kicking another inmate in the face during a game in the
recreational yard.1 When questioned by Correction Sergeant


     1
        Defendant was in the correctional facility awaiting trial
on an indictment charging him with, among other things, criminal
                              -2-                104645

Jeffrey Bercume, defendant admitted that he had kicked the victim
in the face because he was annoyed with him, but asserted that it
had been accidental. The incident was recorded by facility
cameras, and a video thereof was played and admitted into
evidence at trial. Upon his conviction, defendant was sentenced
as a second felony offender to a prison term of seven years with
three years of postrelease supervision, to be served concurrently
to the aggregate 53-year prison term imposed on the same date for
unrelated convictions. Defendant now appeals.

      Contrary to defendant's claims, the verdict is supported by
legally sufficient evidence and is not contrary to the weight of
the credible evidence (see People v Bleakley, 69 NY2d 490, 495
[1987]; see also People v Cahill, 2 NY3d 14, 57-58 [2003]). To
prove that defendant committed the crime of assault in the second
degree as charged, the People were required to establish that,
while incarcerated after having been charged or convicted of a
crime, defendant intentionally caused physical injury to another
person (see Penal Law § 120.05 [7]). Defendant conceded that, at
the time of the incident, he was incarcerated and had been
charged with numerous sex offenses and other crimes; he
challenges only the evidence of his intent and of the victim's
physical injuries. Viewing the evidence, particularly the video
of the assault, in the light most favorable to the People and
affording them the benefit of every favorable inference, as we
must on a legal sufficiency review (see People v Cabey, 85 NY2d
417, 420 [1995]; People v Contes, 60 NY2d 620, 621 [1983]), we
find that the People established beyond a reasonable doubt that
defendant intentionally caused physical injury to the victim (see
People v Bleakley, 69 NY2d at 495). His intent was readily
inferable from the deliberate, forceful and unprovoked conduct


sexual act in the first degree (five counts), unlawful
imprisonment in the first degree, menacing in the second degree,
criminal mischief in the fourth degree, kidnapping in the second
degree, sexual abuse in the first degree, rape in the first
degree and driving while intoxicated. Following a jury trial,
defendant was convicted of those charges and, upon appeal, this
Court has affirmed the judgment of conviction (People v Hadfield,
___ AD3d ___ [appeal No. 101644, decided herewith]).
                              -3-                104645

itself and the surrounding circumstances, all of which were
clearly captured on the video (see People v Rodriguez, 17 NY3d
486, 489 [2011]; People v Bracey, 41 NY2d 296, 301 [1977]; People
v Johnson, 107 AD3d 1161, 1163 [2013], lv denied 21 NY3d 1075
[2013]; People v Ford, 90 AD3d 1299, 1300 [2011], lv denied 18
NY3d 994 [2012]). The People proved that the victim had
sustained "physical injury" with evidence that he remained
crouched down for several minutes after the assault and was later
found disoriented and injured in his cell with a swollen face and
cut lip, experiencing a high level of pain. The victim had no
memory of the incident or of the surrounding time period, and the
medical evidence established that he had sustained a concussion
(see Penal Law § 10.00 [9]; People v Hines, 9 AD3d 507, 511
[2004], lv denied 3 NY3d 707 [2004]; People v Mack, 301 AD2d 863
[2003], lv denied 100 NY2d 540 [2003]). As "there is a[] valid
line of reasoning and permissible inferences which could lead a
rational person to the conclusion reached by the [factfinder] on
the basis of the evidence at trial" (People v Bleakley, 69 NY2d
at 495), we find that the evidence was legally sufficient.

      Upon our independent review of the weight of the credible
evidence, we find that, in light of the video of the assault
unmistakably demonstrating defendant's intent to cause physical
injury to the victim, a different verdict would have been
unreasonable (see People v Johnson, 24 AD3d 803, 804 [2005];
People v Clark, 284 AD2d 725, 727 [2001]). Even if a different
verdict would have been reasonable (see People v Bleakley, 69
NY2d at 495; see also People v Romero, 7 NY3d 633, 643 [2006]),
viewing the probative force of the conflicting evidence in a
neutral light and according deference to the credibility
determinations of County Court, as factfinder, given its ability
to view the witnesses firsthand, we are satisfied that the
verdict was not contrary to the weight of the evidence (see
People v Bleakley, 69 NY2d at 495; see also People v Danielson, 9
NY3d 342, 348 [2007]; People v Mitchell, 57 AD3d 1308, 1309-1310
[2008]). The court rationally rejected as incredible defendant's
explanation that his actions in kicking the victim in the face
were accidental or part of the game, as his conduct can only
reasonably be viewed as intentional.
                              -4-                104645

      Contrary to defendant's claims, his statement to Bercume
was not the result of a custodial interrogation requiring Miranda
warnings. While Bercume admittedly did not administer such
warnings prior to questioning defendant about the incident,
Miranda warnings are only required prior to questioning an inmate
in a prison setting where "the circumstances of the detention and
interrogation . . . entail added constraint that would lead a
prison inmate reasonably to believe that there has been a
restriction on that person's freedom over and above that of
ordinary confinement in a correctional facility" (People v Alls,
83 NY2d 94, 100 [1993], cert denied 511 US 1090 [1994]; see
People v Passino, 53 AD3d 204, 205-206 [2008], affd 12 NY3d 748
[2009]). At the Huntley hearing, Bercume testified that he
viewed the video recording of the incident, and then went to
defendant's single cell around 10:40 p.m., after the inmates had
been locked down for the night. He entered the cell, which
remained unlocked, and asked defendant "if he had any idea what
occurred in the rec yard" to the victim. Defendant initially
denied any knowledge of the incident but, when Bercume told him
that he had viewed a video of the incident, defendant stated that
he had become agitated with the victim and had asked him to stop
doing something, and, when the victim continued to annoy him,
defendant kicked him in the face. The entire conversation lasted
about five minutes, defendant was not transported to an isolated
location, handcuffed or restrained, Bercume was unarmed and no
one else was present. We find that the interaction was
"analogous to the relatively brief, generally public, or
otherwise on-the-scene investigatory detentions in nonprison
settings found not custodial for Miranda purposes" (People v
Alls, 83 NY2d at 100). As the record is devoid of any proof of
"added constraint . . . over and above that of ordinary
confinement in a correctional facility," the questioning was not
custodial for purposes of Miranda, and Miranda warnings were not
required (People v Alls, 83 NY2d at 100; see People v Passino, 53
AD3d at 205-206; compare People v Gause, 50 AD3d 1392, 1393
[2008]; People v Van Patten, 48 AD3d 30, 33-34 [2007], lv denied
10 NY3d 845 [2008]).

      Defendant further argues that his indelible right to
counsel was violated when he was questioned in jail about this
assault at a time when he was represented by counsel on pending
                              -5-                104645

charges for which he was incarcerated, and that his statement
should have been suppressed. "Under New York's indelible right
to counsel rule, a defendant in custody in connection with a
criminal matter for which he [or she] is represented by counsel
may not be interrogated in the absence of his [or her] attorney
with respect to that matter or an unrelated matter unless he [or
she] waives the right to counsel in the presence of his [or her]
attorney" (People v Lopez, 16 NY3d 375, 377 [2011]). Relevant to
this inquiry is whether the correction officer knew or should be
charged with the knowledge of defendant's representation by
counsel on the unrelated charge (see id. at 382). While
defendant raised this issue in his stipulation in lieu of
motions, he did not pursue it at the suppression hearing and his
request to reopen the hearing was denied. However, "a claimed
deprivation of the State constitutional right to counsel may be
raised on appeal, notwithstanding that the issue was not
preserved by having been specifically raised in a suppression
motion or at trial," provided there is a "factual record
sufficient to permit appellate review" (People v Kinchen, 60 NY2d
772, 773-774 [1983]; accord People v Westervelt, 47 AD3d 969, 972
[2008], lv denied 10 NY3d 818 [2008]). Accepting, arguendo, that
Bercume was aware that defendant was in custody and represented
by counsel on pending charges (see People v Burdo, 91 NY2d 146,
150 and n [1997]), we agree that the questioning2 of defendant
without counsel regarding this assault violated his indelible
right to counsel (see People v Lopez, 16 NY3d at 380-383).
However, we conclude that the erroneous admission of his
statement – acknowledging that he had kicked the victim but
claiming it had been accidental – was harmless beyond a
reasonable doubt and reversal is not required, as "there is no
reasonable possibility that the error might have contributed to
defendant's conviction" (People v Crimmins, 36 NY2d 230, 237
[1975]; accord People v Smith, 97 NY2d 324, 330 [2002]; People v
Westervelt, 47 AD3d at 973; see People v Lopez, 16 NY3d at 386-


    2
        The fact that defendant was questioned by a correction
officer rather than by a police officer does not alter our
conclusion (see People v Garofolo, 46 NY2d 592, 603 [1979]; see
e.g. People v Hopkins, 86 AD2d 937, 939 [1982], affd 58 NY2d 1079
[1983]).
                              -6-                  104645

387; see also People v Wardlaw, 6 NY3d 556, 560-561 [2006]).
Indeed, the video of the incident provided overwhelming evidence
of his intent and guilt, as County Court noted in announcing its
verdict.

      Finally, given defendant's extensive criminal history, we
find no extraordinary circumstances or abuse of discretion
supporting a reduction of the sentence in the interest of justice
(see CPL 470.15 [3] [c]; [6] [b]; People v Elliot, 57 AD3d 1095,
1097 [2008], lv denied 12 NY3d 783 [2009]).

     Stein, J.P., McCarthy, Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
