                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 3, 2015                     106219
________________________________

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

ANTHONY C. HARDEN,
                    Appellant.
________________________________


Calendar Date:   October 15, 2015

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

                               __________


      Carolyn B. George, Albany, for appellant, and appellant pro
se.

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

                               __________


Garry, J.P.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered July 23, 2013 in Albany County, upon a verdict
convicting defendant of the crime of assault in the second
degree (two counts).

      Defendant was previously convicted of several crimes
arising out of an altercation in the City of Albany in which
three men (hereinafter victim 1, victim 2 and victim 3) received
knife wounds. Upon defendant's prior appeal, this Court reversed
the convictions and remitted the matter for a new trial (99 AD3d
1031, 1034 [2012], lv denied 20 NY3d 986 [2012]). Following the
second trial, the jury acquitted defendant of all charges
involving victim 1 and convicted him of one count each of assault
                              -2-                106219

in the second degree as to victim 2 and victim 3. He was
sentenced as a second felony offender to consecutive prison terms
of seven years followed by five years of postrelease supervision
on the conviction as to victim 2, and five years followed by five
years of postrelease supervision on the conviction as to victim
3. Defendant appeals.

      Defendant contends that the evidence was legally
insufficient to establish either that he intended to cause
physical injury or that he was the aggressor rather than trying
to escape from the confrontation. He further asserts that the
jury's rejection of his justification defense was against the
weight of the evidence. Defendant's legal sufficiency arguments
are unpreserved as they were not specifically addressed in his
general trial motion for dismissal (see People v Parker, 127 AD3d
1425, 1426 [2015]). Nevertheless, "our weight of the evidence
analysis necessarily involves an evaluation of whether all
elements of the charged crimes were proven beyond a reasonable
doubt at trial" (People v Pine, 126 AD3d 1112, 1114 [2015]
[internal quotation marks, brackets and citations omitted]).

      The People's witnesses included the three victims, their
four friends – victim 1's wife, another woman and two men – with
whom the victims had been walking home from a street festival,
and several onlookers. Taken as a whole, their testimony
revealed that the incident began with an angry verbal exchange
between defendant's girlfriend, who was driving a vehicle in
which defendant was riding, and victim 1 and his wife, who
testified that they had fallen behind the rest of their group and
that the vehicle nearly struck them as they were crossing the
street. Following this initial incident, victim 1 and his wife
continued walking up the street. Meanwhile, the vehicle pulled
over and defendant got out, pulled off his sweatshirt, threw it
into the vehicle and followed them. One of the bystanders
described defendant as so "agitated" that the bystander "had a
bad feeling" and recorded the vehicle's license plate number;
another bystander testified that defendant followed victim 1 and
his wife for about 1,000 yards.

      Upon catching up with victim 1 and his wife, defendant
began to castigate them, and the rest of the group joined the
                              -3-                106219

increasingly heated discussion. There was testimony that some of
the participants allegedly tried to defuse the confrontation,
advising defendant that they did not want to fight and asking him
to leave them alone, but defendant was "very aggressive," "was
looking for a fight," and said "I want it now." Meanwhile,
defendant's girlfriend drove her vehicle the wrong way on a one-
way street to join them, got out and entered the confrontation,
which then quickly erupted into two separate physical fights, one
involving the women and the other the men. The People's
witnesses said that the violence began when defendant's
girlfriend struck victim 1's wife, that defendant then struck or
shoved the other woman in the group as she tried to help victim
1's wife, and that when victim 1 tried to help his wife,
defendant struck him, breaking his nose. Defendant allegedly
kept punching victim 1 while the others tried unsuccessfully to
pull him off; then defendant and the three victims – and
according to some witnesses, the other two men – began exchanging
punches. One of the other two men testified that he hung back,
watching the fight, and after 15 or 20 seconds saw defendant
reach into his waistband, withdraw a knife and stab victim 1, who
fell to the ground. When victim 2 "lean[ed] in" to help victim
1, defendant stabbed him in the neck. Victim 3 testified that
defendant, who was very close to him, then motioned at him and
said, "I live for this s***." Victim 3 backed away and did not
realize until a few moments later that he had been stabbed in the
hand and the torso. Several other witnesses stated that they
heard defendant utter this phrase; these witnesses included an
EMT who had happened upon the scene, who also testified that he
saw defendant swinging a knife against three men and that his
demeanor was very aggressive.

      Defendant's girlfriend retreated to her vehicle, followed
by defendant; several witnesses saw a knife in his hand as he ran
and, when he neared the vehicle, saw him lunge toward a man who
was taking a picture of its license plate. As this man backed
away, he took a blurry photograph, later admitted at trial, of
defendant running toward him with what appeared to be a knife.
Defendant and his girlfriend then fled in the vehicle; police
arrested defendant at his home later that night.
                               -4-                106219

      Defendant and his witnesses offered a different account.
Defendant said that he became upset when someone threw dirt into
the vehicle during the initial confrontation, which might have
struck his young child in the backseat; he stated that he was
trying to discuss the incident with victim 1 when the other four
men surrounded him, saying, "I'm game" and "let's party."
Defendant's girlfriend said that all five men were surrounding
defendant when she joined the altercation, and that she heard one
of the men tell defendant that he was "game" just before the
fight among the women began, which she claimed was initiated by
victim 1's wife. When that altercation ended, she saw defendant
backed up against a car fighting with all five men.

      Defendant denied that he initiated the fight among the men,
testifying that he did not hit anyone until after someone struck
him in the back of the head as he tried to help his girlfriend.
He said he then backed up, trying to escape as all five men threw
punches at him, and fell to the ground, where the men kneed and
kicked him. When he managed to get up, the men pinned him first
to one parked car and then to a second car, where one of the men
pulled out a knife. Defendant said that he snatched the knife
away by its handle, using his left hand, and then started
stabbing, testifying that if he had not done so, he would have
been killed. When the men backed off, he dropped the knife and
fled to his vehicle, explaining that the object visible in his
hand in the blurry photograph taken at the scene was not a knife,
but his girlfriend's flip flops, which he had allegedly retrieved
after she lost them.1 He further stated that two of the victims
– who, according to other witnesses, were incapacitated by their
wounds by this time – chased him to the vehicle. A witness who
saw the confrontation from a nearby car supported defendant's
story in part, testifying that he saw five men fighting with one
man who was backed up against a car, and that they were "beating
him up pretty bad." Defendant suffered injuries to his face
during the struggle, but – despite his claim that he grabbed the
knife from one of the other men – had no lacerations on his hands


     1
        The knife was never located, although police testified
that they exhaustively searched the area where the fight
occurred.
                              -5-                106219

other than a partially healed, scabbed-over cut on his left
thumb. He acknowledged that he did not mention this cut to the
medical professionals who treated his other injuries.

      Based upon the testimony of defendant's witnesses, a
different outcome would not have been unreasonable.
Nevertheless, upon our review, we find no reason to disturb the
jury verdict rejecting defendant's justification defense, which
applies when conduct that would otherwise have been criminal "is
necessary as an emergency measure to avoid an imminent . . .
injury which is about to occur by reason of a situation
occasioned or developed through no fault of the actor," and the
threatened injury is so grave as to outweigh the harm resulting
from the actor's conduct (Penal Law § 35.05 [2]). The conflicts
in the testimony as to whether defendant was the aggressor or was
trying to escape, and as to whether he was the first to escalate
the confrontation by wielding the knife or took it from one of
the other men to defend himself, were for the jury to resolve
(see People v Vanderhorst, 117 AD3d 1197, 1199-2000 [2014], lv
denied 24 NY3d 1089 [2014]).

      Defendant's intent to cause injury was a factual question
that the jury could infer from his conduct and the surrounding
circumstances (see People v Francis, 83 AD3d 1119, 1122 [2011],
lv denied 17 NY3d 806 [2011]; People v Gonzalez, 64 AD3d 1038,
1041 [2009], lv denied 13 NY3d 796 [2009]). Here, one of the
witnesses who saw defendant using the knife testified that he was
not just waving it, but was "jabbing" it with a rapid outward
movement of his arm, which the witness described as a "jack
motion with full intent to strike." As to defendant's claim that
the wounds he inflicted were not sufficiently severe as to
indicate that he intended to cause injury, witnesses said that
after victim 2 was stabbed in the neck, he was coughing and
"choking on his own blood" and that his head "[blew] up like a
balloon" to twice its normal size. He was intubated, required
emergency surgery and was hospitalized for a week, including two
days in intensive care. The thoracic surgeon who treated him
testified that the laceration in his clavicle had "completely
violated" the front wall of his trachea, or airway, and also
caused an abrasion on the trachea's back wall, and that these
injuries posed a substantial risk of death. Victim 3 was stabbed
                              -6-                106219

in the abdomen and the hand and required surgery to repair a
severed extensor tendon. His surgeon testified that he would
have lost the ability to use his index finger if the tendon had
not been repaired. Victim 3 testified that he spent two months
in physical therapy, had to relearn the ability to write and,
several years later, still suffered occasional pain and other
residual effects. Defendant's intent to cause injury may readily
be inferred from the severity of these wounds (see People v
Newland, 83 AD3d 1202, 1204 [2011], lv denied 17 NY3d 798
[2011]). Given this evidence, as well as the testimony that
defendant initiated the confrontation by pursuing the victims and
then escalated it by pulling out the knife, the jury's rejection
of the justification defense was not contrary to the weight of
the evidence (see People v Green, 121 AD3d 1294, 1295 [2014], lv
denied 25 NY3d 1164 [2015]; People v Fisher, 89 AD3d 1135, 1137-
1138 [2011], lv denied 18 NY3d 883 [2012]; People v Terk, 24 AD3d
1038, 1039-1040 [2005]).

      Defendant next contends that Supreme Court's jury
instruction on justification was erroneous. However, defendant's
counsel expressly agreed to the instruction during the charge
conference and, thereafter, neither objected when the charge was
given nor when the jury asked to have it reread during
deliberations. Counsel objected to the instruction for the first
time only after the court received a note from the jury
indicating that it had reached a unanimous verdict. As this
objection came too late to permit any error to be corrected, the
claim is unpreserved (see CPL 470.05 [2]; People v Houck, 101
AD3d 1239, 1240 [2012]). We further reject defendant's claim
that his counsel's failure to object to the instruction
constituted ineffective assistance, which "does not arise from
counsel's failure to make a motion or argument that has little or
no chance of success" (People v Clarke, 110 AD3d 1341, 1345
[2013], lv denied 22 NY3d 1197 [2014] [internal quotation marks
and citations omitted]). A timely objection to the instruction
would not have succeeded, as our review reveals no error.
Contrary to defendant's claim, the court did not err in
instructing the jury to assess defendant's subjective belief that
deadly physical force was necessary to defend himself with
reference to each individual victim, rather than with reference
                               -7-                106219

to all of the circumstances.2 Penal Law § 35.15 (2) imposes a
two-part standard by which the jury must first determine whether
a defendant subjectively believed that the use of deadly physical
force against an individual was necessary because that individual
was using or about to use deadly force, and then must determine
whether this belief was objectively reasonable in view of all the
circumstances (see Matter of Y.K., 87 NY2d 430, 433-434 [1996]).
The court's instruction mirrored these requirements and, using
the language of the pattern charge, properly instructed the jury
to consider the subjective element of the defense with regard to
each victim and to consider the surrounding circumstances with
regard to the second, objective prong of the test (see People v
Young, 33 AD3d 1120, 1122-1123 [2006], lv denied 8 NY3d 921
[2007]; CJI2d[NY] Justification: Use of Deadly Physical Force in
Defense of a Person).

      Defendant next contends that Supreme Court erred in failing
to poll the jury on the counts as to which he was acquitted.
This contention is unpreserved; a jury must be polled upon either
party's request, but a defendant cannot challenge the manner in
which the poll was taken on appeal if he or she failed to call
the trial court's attention to the alleged deficiency (see CPL
310.80; People v Mercado, 91 NY2d 960, 963 [1998]; People v
Henry, 64 AD3d 804, 806 [2009], lv denied 13 NY3d 860 [2009];
People v Booker, 53 AD3d 697, 704 [2008], lvs denied 11 NY3d 853,
856 [2008]). Here, defendant asked the court to poll the jury,
agreed that it would be sufficient to do so only as to the guilty
verdicts, and at no time objected to that procedure.

      Finally, defendant's sentence was not harsh or excessive.
The aggregate of the two consecutive terms was shorter than the
maximum that defendant could have received as a second felony
offender (see Penal Law §§ 70.06 [3] [d]; 70.25). In view of
defendant's lack of remorse, his criminal history, and the
severity of the victims' injuries, we find no abuse of discretion


     2
        The use of a knife constitutes deadly physical force as a
matter of law (see People v Taylor, 118 AD3d 1044, 1048 [2014],
lv denied 23 NY3d 1043 [2014]; People v Jones, 24 AD3d 815, 816
[2005], lv denied 6 NY3d 777 [2006]).
                              -8-                  106219

or extraordinary circumstances warranting modification (see
People v Hill, 130 AD3d 1305, 1306 [2015]; People v Ferrer, 115
AD3d 1113, 1114 [2014]; People v Baugh, 101 AD3d 1359, 1362-1363
[2012], lv denied 21 NY3d 911 [2013]).

     Egan Jr., Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
