State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 107048 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

THOMAS RYDER,

Appellant.

________________________________

Calendar Date: November 22, 2016

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

__________

Carolyn B. George, Albany, for appellant.

P. David Soares, District Attorney, Albany (Brittany L.

Grome of counsel), for respondent.

__________

Mulvey, J.

Appeal from a judgment of the County Court of Albany County

(Lynch, J.), rendered May 13, 2014, convicting defendant

following a nonjury trial of the crimes of attempted murder in

the second degree, strangulation in the first degree,

strangulation in the second degree and assault in the second

degree (two counts).

Defendant was charged in a six-count indictment with one

count of attempted murder in the second degree, one count of

strangulation in the first degree, two counts of strangulation in

the second degree and two counts of assault in the second degree. 

The charges stem from defendant's May 23, 2013 beating of his 65-

year-old mother (hereinafter the victim). Defendant waived a

jury trial and County Court found defendant guilty of attempted
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murder in the second degree, strangulation in the first degree,

strangulation in the second degree and both counts of assault in

the second degree. He was sentenced to an aggregate prison term

of 21 years with five years of postrelease supervision.

Defendant argues that the verdict was not supported by

legally sufficient evidence and was against the weight of the

evidence. "In determining legal sufficiency, we view the

evidence in the light most favorable to the People and give them

the benefit of every favorable inference. We will not disturb

the verdict if the evidence demonstrates a valid line of

reasoning and permissible inferences that could lead a rational

person to the conclusion reached by the jury. When we conduct a

weight of the evidence review, if we are satisfied that a

different verdict would not have been unreasonable, we

independently assess the relative probative force of conflicting

testimony and the relative strength of conflicting inferences

that may be drawn from the testimony" (People v Baltes, 75 AD3d

656, 658 [2010] [internal quotation marks and citations omitted],

lv denied 15 NY3d 918 [2010]).

On May 23, 2013, at approximately 3:30 a.m., the victim was

in her apartment getting ready to report to work as a hotel

laundry attendant. Three days earlier, she had agreed to let

defendant, her 45-year-old son, stay in her spare bedroom for a

few days following his 15-year absence. She ventured from her

bedroom into the living room to turn off the television. 

Defendant was sleeping on the couch and when she tried to turn

the television off, she accidentally knocked a DVD player onto

the floor, waking defendant. Defendant rose up and stared at

her. He pushed the victim to the floor, causing her to strike

her shoulder and head. After she got up, he ordered her to sit

on the couch and watch a movie. He informed her that he was

going to get a gun and kill her. When she tried to leave, he

punched her in the face causing her to land on her back. 

Defendant jumped on top of her and began punching her in the face

and head with his fists. He dragged her around the room by her

hair, then stomped on her with his feet, and kicked her in the

breast, stomach, wrists and legs. Defendant retrieved a pair of

headphones from his bedroom and started beating the victim in the

mouth with them. He tried to open her mouth and shove them down
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her throat, raking them across her teeth. He put his hand around

the victim's throat and choked her while she begged for her life. 

She was unable to breathe and believed that she was dying,

testifying at trial that "it all went black." When she opened

her eyes, she saw that defendant was standing by the bedroom with

his back to her. The victim escaped the apartment and, as she

was walking down the street toward the police station in her

nightgown, a cab driver stopped and drove her to the police

station. She was transported to the hospital and, upon

examination, found to have sustained swelling to her right eye, a

broken right arm, three distinct fractures to the right side of

her face, a subconjunctive hemorrhage in the inner eye and

extensive bruising on her face, neck, torso and legs. At trial,

defendant admitted that he grabbed and punched a person in the

apartment that morning, believing the person to be an intruder. 

He ultimately admitted that the person he attacked was his

mother, but asserted that he did not realize it at the time. He

also denied ever strangling her, using headphones to beat her or

trying to kill her.

Defendant's challenge to the conviction of attempted murder

in the second degree centers on the fact that the victim was

treated and released from the hospital the same day and that

there was no proof of a need for follow-up medical care. A

person is guilty of murder in the second degree, when, with an

intent to kill, that person causes the death of another person

(see Penal Law § 125.25 [1]). A person is guilty of an attempt

to commit a crime, when, with specific intent to commit such a

crime, that person "engages in conduct which tends to effect the

commission of such crime" (Penal Law § 110.00). The "'intent to

kill may be inferred from the surrounding circumstances and a

defendant's actions'" (People v Stanford, 130 AD3d 1306, 1308

[2015], lv denied 26 NY3d 1043 [2015], quoting People v Hamilton,

127 AD3d 1243, 1245 [2015], lvs denied 25 NY3d 1164 [2015]). The

proof must show that the defendant "engaged in conduct that came

dangerously near commission of the completed crime" (People v

Kassebaum, 95 NY2d 611, 618 [2001] [internal quotation marks

omitted], cert denied 532 US 1069 [2001]).

The brutal beating and choking of the victim, together with

defendant's threatening words in the course thereof, clearly

demonstrated his intent to kill. Medical testimony established
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that the act of strangling a person to the point where the person

loses consciousness is life-threatening due to deprivation of

oxygen and blood flow to the brain. The absence of a long-term

serious injury to a victim does not preclude the finding of lifethreatening actions by a defendant (see People v Greenfield, 112

AD3d 1226, 1227-1228 [2013], lv denied 23 NY3d 1037 [2014];

People v Fernandez, 88 NY2d 777, 783 [1996]). Under these

circumstances, we find that the People's proof in support of this

charge was legally sufficient and the verdict was not against the

weight of the credible evidence.

With regard to count 5 of the indictment, assault in the

second degree, defendant contends that the weight of the evidence

does not establish that he used headphones in the course of the

victim's beating, and that headphones do not constitute a

dangerous instrument as defined in Penal Law § 10.00 (13). As

relevant here, a person is guilty of assault in the second degree

when, "[w]ith intent to cause 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 § 120.05

[2]). A dangerous instrument is defined as "any instrument,

article or substance . . . which, under the circumstances in

which it is used, . . . is readily capable of causing death or

other serious physical injury" (Penal Law § 10.00 [13]). We

conclude that, in light of the manner in which the headphones

were used, as described by the victim here, they qualify as a

dangerous instrument (see People v Ray, 273 AD2d 611, 613

[2000]). Defendant notes that the victim did not mention the

headphones in her initial report to the police or to the medical

providers and that they were not identified at trial. These

points merely address the credibility of her assertion that the

headphones were used to beat her about the face and mouth. While

a different verdict on this count would not have been

unreasonable in light of defendant's testimony, after considering

the evidence in a neutral light and according due deference to

County Court's credibility determinations, we conclude that the

verdict on this count is not against the weight of the evidence

(see People v Pine, 126 AD3d 1112, 1115-1116 [2015], lv denied 27

NY3d 1004 [2016]).
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Turning to the charge of strangulation in the second

degree, we reject defendant's contention that there was a lack of

evidence of "stupor, loss of consciousness for any period of

time, or any other physical injury or impairment" (Penal Law

§ 121.12). The victim's description of her experience while

defendant was squeezing her throat with his hand confirms her

loss of consciousness since she testified that she "saw black

spots and lights flashing" before "it went all black." She also

testified that she lost bladder function. Medical proof

confirmed how pressure to the throat leads to a loss of

consciousness and loss of bladder control. Further, the

strangulation injuries as described by the victim and the medical

care providers amply established physical injury, which is

defined as "impairment of physical condition or substantial pain"

(Penal Law § 10.00 [9]). Photographs of the victim's neck taken

several days after the attack confirm bruising consistent with

the pressure applied to the victim's neck. We find that this

evidence was sufficient as a matter of law (see People v Carte,

113 AD3d 191, 194 [2013], lv denied 23 NY3d 1035 [2014]). Nor

was the verdict on this charge against the weight of the

evidence, since there was ample basis for County Court to credit

the victim's testimony and the medical proof presented by the

People.

Finally, we reach the same conclusion as to the proof in

support of the charge of strangulation in the first degree, which

required the People to prove that the victim sustained a "serious

physical injury" (Penal Law § 121.13). To establish this

element, the proof must show an injury "which creates a

substantial risk of death, or which causes death or serious and

protracted disfigurement, protracted impairment of health or 

protracted loss or impairment of the function of any bodily

organ" (Penal Law § 10.00 [10]). As noted above, testimony by a

pathologist confirmed that the restriction of blood flow to the

brain to the extent that it causes unconsciousness, impaired

vision and/or loss of motor function is life-threatening. We

find that this evidence was legally sufficient to establish the

element of serious physical injury because it constituted an

impairment of her physical condition creating a substantial risk

of death (see People v McCann, 126 AD3d 1031, 1034 [2015], lv

denied 25 NY3d 1167 [2015]; People v Miller, 290 AD2d 814, 815
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[2002], lv denied 98 NY2d 678 [2002]). 

Garry, J.P., Egan Jr., Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court