     11-966
     United States v. Graves


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 4th day of April, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      UNITED STATES OF AMERICA,
14
15                   Appellee,
16
17                   -v.-                                               11-966
18
19      KAREEM GRAVES,
20
21                   Defendant-Appellant.
22
23      - - - - - - - - - - - - - - - - - - - -X
24
25      FOR APPELLANT:                        Glenn A. Garber (Angharad
26                                            Vaughan, on the brief)
27                                            Glenn A. Garber, P.C.
28                                            New York, NY

                                                 1
 1   FOR APPELLEE:              Martin S. Bell (Jesse M. Furman,
 2                              on the brief), Assistant United
 3                              States Attorney, for Preet
 4                              Bharara, United States Attorney,
 5                              Southern District of New York,
 6                              New York, NY
 7
 8        Appeal from an amended judgment of the United States
 9   District Court for the Southern District of New York
10   (Kaplan, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the district court’s amended judgment is
14   AFFIRMED.
15
16        Kareem Graves appeals from a judgment entered in the
17   United States District Court for the Southern District of
18   New York revoking his supervised release and sentencing him
19   to a one-year term of imprisonment followed by two years of
20   supervised release. We assume the parties’ familiarity with
21   the underlying facts, the procedural history, and the issues
22   presented for review.
23
24   [1] Graves argues that the evidence was insufficient to
25   show that he violated the conditions of his supervised
26   release by assaulting his ex-girlfriend, Rahsheta Dequentin.
27   The Government must prove the violation of a condition of
28   supervised release by a preponderance of the evidence. See
29   18 U.S.C. § 3583(e)(3); United States v. Carlton, 442 F.3d
30   802, 806-10 (2d Cir. 2006). We “review a district court’s
31   finding of a violation of supervised release only for an
32   abuse of discretion and its factual findings for clear
33   error.” Id. at 810. A district court abuses its discretion
34   if it “base[s] its ruling on an erroneous view of the law or
35   on a clearly erroneous assessment of the evidence, or
36   render[s] a decision that cannot be located within the range
37   of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132
38   (2d Cir. 2008) (internal citation and quotation marks
39   omitted).
40
41        Under New York law, a person is guilty of third degree
42   assault when “[w]ith intent to cause physical injury to
43   another person, he causes such injury to such person or to a
44   third person.” N.Y. Penal Law § 120.00(1). Physical injury

                                  2
 1   is defined as “impairment of physical condition or
 2   substantial pain.” Id. § 10.00(9). Substantial pain “is
 3   more than slight or trivial pain. Pain need not, however,
 4   be severe or intense to be substantial.” People v.
 5   Chiddick, 8 N.Y.3d 445, 447 (2007). It requires “more than
 6   a mere technical battery” and “petty slaps, shoves, kicks
 7   and the like delivered out of hostility, meanness and
 8   similar motives” are insufficient. People v. Henderson, 92
 9   N.Y.2d 677, 680 (1999) (internal quotation marks omitted).
10   Among relevant factors are “the injury defendant inflicted,
11   viewed objectively,” “the victim’s subjective description of
12   what [s]he felt,” whether the victim sought medical
13   treatment, and the motive of the assailant. Chiddick, 8
14   N.Y.3d at 447-48. None of these factors is dispositive,
15   however. Ultimately, “[w]hether the substantial pain
16   necessary to establish an assault charge has been proved is
17   generally a question for the trier of fact.” People v.
18   Rojas, 61 N.Y.2d 726, 727 (1984) (internal quotation marks
19   omitted).
20
21        The evidence was sufficient for the district court to
22   conclude, by a preponderance of the evidence, that Graves
23   caused Dequentin substantial pain. Dequentin testified that
24   Graves choked her and slapped her in the face multiple
25   times. In her report to police, she specifically stated
26   that she had suffered “substantial pain.” Although she did
27   not seek medical attention or have signs of physical
28   bruising or bleeding, she did not go into work as a result
29   of the attack, and was so frightened of further harm that
30   she hid for a week in a friend’s apartment. The district
31   court, as a trier of fact, was entitled to credit
32   Dequentin’s account of the pain she experienced. See People
33   v. Gerecke, 823 N.Y.S.2d 797, 799 (App. Div. 4th Dep’t 2006)
34   (jury could credit the victim’s testimony that he was in
35   great pain even though he failed to seek medical treatment
36   or take time off from work).
37
38        There was also sufficient evidence for the district
39   court to find that Graves intended to cause Dequentin
40   substantial pain. In some cases, “intent can be inferred
41   from the act itself,” People v. Bracey, 41 N.Y.2d 296, 301
42   (1977), and a finder of fact is permitted to infer that a
43   person intends the natural consequences of his acts. See
44   People v. Getch, 50 N.Y.2d 456, 465 (1980). The court could

                                  3
 1   reasonably conclude that it was more likely than not that by
 2   pushing Dequentin on a bench and repeatedly choking her and
 3   slapping her in the face, Graves intended to inflict
 4   physical injury. See United States v. Coppola, No. 10-0065-
 5   cr, 2012 WL 456514, at *22 (2d Cir. Feb. 14, 2012)
 6   (“preponderance finding satisfied if fact’s existence was
 7   ‘more likely than not’” (quoting United States v. Hertular,
 8   562 F.3d 433, 447 (2d Cir. 2009)).
 9
10   [2] The evidence was also sufficient for the district
11   court to find that, by sending text messages to Dequentin,
12   Graves knowingly violated a protective order issued by the
13   Bronx County Supreme Court. To establish criminal contempt
14   for violation of a protective order, the Government must
15   show that the defendant had knowledge of the order and
16   intentionally disobeyed it. See N.Y. Penal Law § 215.50(3);
17   People v. Inserra, 4 N.Y.3d 30, 32 (2004). Although Graves
18   was not present when the protective order was issued, the
19   district court inferred the requisite knowledge based on a
20   letter Graves sent to the court, in which he failed to
21   disclaim knowledge of the protective order and instead
22   attempted to justify his violation by explaining that he
23   meant to text Dequentin’s brother (an obvious falsehood
24   based on the substance of the text messages). This was an
25   available inference, and was therefore not clearly
26   erroneous. See Hernandez v. New York, 500 U.S. 352, 369
27   (1991) (“[W]here there are two permissible views of the
28   evidence, the factfinder’s choice between them cannot be
29   clearly erroneous.” (quoting Anderson v. Bessemer City, 470
30   U.S. 564, 574 (1985)).
31
32   [3] Graves challenges his sentence as substantively
33   unreasonable. We review a district court’s sentence for
34   substantive reasonableness under an abuse-of-discretion
35   standard. Gall v. United States, 552 U.S. 38, 51 (2007).
36   “[W]hen conducting substantive review, we take into account
37   the totality of the circumstances, giving due deference to
38   the sentencing judge’s exercise of discretion, and bearing
39   in mind the institutional advantages of district courts.”
40   United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)
41   (in banc). We will “set aside a district court’s
42   substantive determination only in exceptional cases where
43   the trial court’s decision cannot be located within the
44   range of permissible decisions.” Id. at 189 (internal

                                  4
 1   quotation marks omitted). In light of the pattern of
 2   violence illustrated by Graves’s conduct following his
 3   release from prison, his multiple prior felony convictions,
 4   and the fact that he had reverted to crime just months after
 5   his release, his one-year term of imprisonment was within
 6   the range of permissible sentences.
 7
 8        We have considered Graves’s remaining arguments and
 9   find them to be without merit. For the foregoing reasons,
10   the amended judgment of the district court is hereby
11   AFFIRMED.
12
13
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17
18
19
20
21
22
23
24
25
26
27
28
29




                                  5
