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. 
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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."
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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
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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
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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,
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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