                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   105689
________________________________

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

FRANK SORIANO,
                    Appellant.
________________________________


Calendar Date:   September 4, 2014

Before:   Peters, P.J., Stein, Garry, Lynch and Devine, JJ.

                             __________


     Gerard V. Amedio, Saratoga Springs, for appellant.

      Stuart M. Cohen, Special Prosector, Rensselaer, for
respondent.

                             __________


Stein, J.

      Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered November 28, 2012, upon a verdict
convicting defendant of the crimes of assault in the second
degree and criminal possession of a weapon in the fourth degree.

      On September 10, 2011, defendant and the victim were
traveling in their separate vehicles and were involved in a minor
collision. After defendant and the victim stopped their
respective vehicles on the shoulder of the road, a physical
altercation ensued and, at some point therein, defendant slashed
and/or stabbed the unarmed victim multiple times with a dagger
that had a two-inch blade. As a result of his injuries, the
victim was airlifted to a hospital where he was treated for his
wounds and severe blood loss.
                               -2-                105689

      Defendant was subsequently arrested and indicted on charges
of assault in the first and second degrees, attempted assault in
the first degree and criminal possession of a weapon in the
fourth degree. Following a jury trial, defendant was convicted
of assault in the second degree and criminal possession of a
weapon in the fourth degree and was thereafter sentenced to a
prison term of five years, to be followed by three years of
postrelease supervision, and a concurrent one-year term of
incarceration, respectively. Defendant now appeals, and we
affirm.

      Initially, we reject defendant's argument that his
conviction of assault in the second degree was against the weight
of the evidence because the People failed to establish that the
victim sustained a serious physical injury. Such conviction was
premised on defendant causing physical injury to the victim "by
means of a deadly weapon or a dangerous instrument" (Penal Law
§ 120.05 [2]),1 which only requires proof that defendant caused
physical injury,2 not serious physical injury (see Penal Law
§ 120.05 [2]). Here, the proof provided by the People
established that defendant intentionally used a dangerous
instrument and/or deadly weapon – specifically, a dagger3 – to
cause physical injury to the victim, and we discern no basis to
conclude that the jury's verdict was against the weight of the
evidence (see People v Taylor, 118 AD3d 1044, 1045-1047 [2014],


     1
        The statutory definition of a deadly weapon includes a
dagger (see Penal Law § 10.00 [12]), and a dangerous instrument
is defined as "any instrument, article or substance . . . 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]).
     2
        Physical injury is defined as "impairment of physical
condition or substantial pain" (Penal Law § 10.00 [9])
     3
        Indeed, defense counsel concedes that the weapon
defendant used was a dagger and specifically informed County
Court at trial that he was not objecting to the court's
instruction that a dagger was a "deadly weapon."
                              -3-                105689

lv denied 23 NY3d 1043 [2014]; People v Francis, 83 AD3d 1119,
1122 [2011], lv denied 17 NY3d 806 [2011]).

      Defendant also challenges the weight of the evidence
supporting his conviction of criminal possession of a weapon in
the fourth degree, which, as relevant here, required proof that
defendant possessed a "dagger, 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]). While
defendant conceded that he possessed a dagger and used it against
the victim, causing him physical injury, defendant argues that
the proof was insufficient to establish his intent to use the
dagger unlawfully. Despite defendant's testimony that he struck
the victim because the victim was repeatedly hitting him and
defendant believed that the victim was going to kill him, it was
within the jury's province to credit the testimony of the victim
and the eyewitnesses that would support a contrary conclusion
(see People v Bailey, 111 AD3d 1310, 1312 [2013], lv denied 23
NY3d 1018 [2014]; People v Brown, 100 AD3d 1035, 1036-1037
[2012], lv denied 20 NY3d 1009 [2013]; People v Britton, 27 AD3d
1014, 1015 [2006], lv denied 6 NY3d 892 [2006]). Further,
defendant's unlawful intent may be inferred from his actions,
including the use of the weapon, and the surrounding
circumstances (see People v Molina, 79 AD3d 1371, 1376 [2010], lv
denied 16 NY3d 861 [2011]). Thus, when we view the evidence in a
neutral light and accord deference to the jury's "opportunity to
view the witnesses, hear the testimony and observe demeanor"
(People v Molina, 79 AD3d at 1376 [internal quotation marks and
citations omitted]), we find that the jury's verdict is not
against the weight of the evidence.

      We are unpersuaded by defendant's assertion that County
Court committed reversible error by refusing to permit him to
introduce into evidence statements that he made to the state
trooper who responded to the scene of the incident with respect
to defendant's belief that he was defending himself against the
victim. At trial, the People informed County Court that they did
not intend to offer any statements made by defendant to law
enforcement, and County Court denied defendant's request to
elicit the statements at issue because they were exculpatory
hearsay that did not fall within an exception to the hearsay
                              -4-                105689

rule. Under the circumstances, and given the testimony of the
responding officer with respect to defendant's demeanor at the
time the statements were made, we cannot say that County Court
abused its "wide discretion" in determining that the statements
did not constitute an excited utterance (People v Carroll, 95
NY2d 375, 385 [2000]). Nor did such statements fall within the
state of mind exception to the hearsay rule. Indeed, inasmuch as
"the only relevancy of defendant's statement[s] would have been
to support his justification defense," the statements were
"inadmissible self-serving hearsay" (People v Reynoso, 73 NY2d
816, 819 [1988]) and were, therefore, properly excluded.

      However, notwithstanding the People's prior assurance, the
People proceeded to directly elicit from the trooper a small
portion of defendant's statements. Even assuming that County
Court erred in refusing to permit defendant to then elicit
testimony that would have completed the exchange between him and
the trooper, when we consider the overwhelming evidence of
defendant's guilt – including the testimony of numerous
eyewitnesses, none of whom had any apparent relationship with
either defendant or the victim – coupled with the fact that
defendant testified extensively as to his subjective fear for his
life during the altercation, we find that such error was harmless
in that there is no significant probability that the verdict
would have been different in the absence thereof (see People v
Byer, 21 NY3d 887, 889 [2013]; People v Crimmins, 36 NY2d 230,
241-242 [1975]).

      Defendant's claim that he was denied a fair trial based on
remarks made by the victim during cross-examination is without
merit. There is no question that the challenged statements were
inappropriate, inflammatory and, to some extent, prejudicial.
During cross-examination, both the People and County Court made
repeated attempts to re-direct the victim and to limit his
responses to counsel's questions. On the other hand, defense
counsel neither objected to the victim's statements, nor
requested that they be stricken or that County Court provide
curative instructions. To the contrary, during closing argument,
defense counsel focused on the victim's improper and erratic
behavior during cross-examination in an attempt to have the jury
question the victim's anger issues and how these issues could
                              -5-                105689

have manifested themselves during the incident with defendant.
For example, the victim's nonresponsive comments could be viewed
as indicating, among other things, that the victim was quick to
anger, that he had the ability to inflict serious physical injury
and that he harbored racial and ethnic prejudices, both generally
and specifically against defendant. Thus, it is readily apparent
that defense counsel's decision to use the victim's comments to
defendant's benefit was strategic and tactical, a decision which
this Court will not second-guess (cf. People v Terry, 85 AD3d
1485, 1488-1489 [2011], lv denied 17 NY3d 862 [2011]).

      County Court properly declined to charge the jury with
assault in the third degree – which does not require the use of a
dangerous instrument or deadly weapon (see Penal Law § 120.00
[1]) – as a lesser included offense. As the evidence clearly
established defendant's use of the dagger, there is no reasonable
view of the evidence that would have supported an instruction as
to the lesser included offense (see People v Brown, 100 AD3d at
1037). To the extent that defendant now raises additional
arguments in support of the lesser included charge that were not
raised before the trial court, they are unpreserved (see CPL
470.05 [2]) and, in any event, are without merit.

      As to the assault charge, defendant's related claim that
County Court improperly denied his request to provide the jury
with a charge of justification by means of ordinary, as opposed
to deadly, physical force is also unavailing. The evidence, even
when viewed in a light most favorable to defendant, did not
support a charge of ordinary physical force, as defendant's use
of the dagger was deadly because it was "readily capable of
causing death or other serious physical injury" (Penal Law §
10.00 [11]; see People v Taylor, 118 AD3d at 1047). Defendant's
further challenge to the justification charge as it was given to
the jury was not preserved by an appropriate request or objection
(see People v Rankin, 117 AD3d 1231, 1233-1234 [2014]; People v
Hawkins, 110 AD3d 1242, 1244 [2013], lv denied 22 NY3d 1041
[2013]). County Court also properly denied defendant's request
for a justification charge with respect to the charge of criminal
possession of a weapon in the fourth degree (see People v Pons,
68 NY2d 264, 267 [1986]). We have examined defendant's remaining
contentions and, to the extent not specifically addressed herein,
                                 -6-               105689

find them to be without merit.

     Peters, P.J., Garry, Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
