State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 105567 

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THE PEOPLE OF THE STATE OF

NEW YORK

Respondent,

v MEMORANDUM AND ORDER

JAMES HILL,

Appellant.

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Calendar Date: May 27, 2015

Before: Peters, P.J., Lahtinen, Garry and Devine, JJ.

__________

Allen & Desnoyers, LLP, Albany (George J. Hoffman Jr. of

counsel), for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H.

Willis of counsel), for respondent.

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Devine, J.

Appeal from a judgment of the Supreme Court (Milano, J.),

rendered August 31, 2012 in Schenectady County, upon a verdict

convicting defendant of the crime of assault in the second

degree.

Defendant and his codefendant were charged in separate

indictments with offenses related to a bar fight wherein they

assaulted the bar's owner. The indictments were consolidated

and, following a joint trial, both men were convicted of assault

in the second degree. Supreme Court sentenced defendant, as a

second violent felony offender, to seven years in prison,

followed by five years of postrelease supervision. The

codefendant appealed, and we recently affirmed his conviction
-2- 105567 

(People v Boddie, 126 AD3d 1129 [2015]). Defendant's appeal is

now before us, and we likewise affirm.

Defendant contends that the verdict was not supported by

legally sufficient evidence and, moreover, was against the weight

of the evidence. As defendant acknowledges, the legal

sufficiency argument is unpreserved, given his failure to renew

his motion to dismiss at the close of all proof (see People v

Boddie, 126 AD3d at 1132; People v Pine, 126 AD3d 1112, 1114

[2015]). Nevertheless, his assertion that the trial evidence

failed to establish that he intentionally injured the victim "by

means of a . . . dangerous instrument" must be addressed as part

of our weight of the evidence review (Penal Law § 120.05 [2];

see People v Boddie, 126 AD3d at 1132). Defendant testified that

he threw a bar stool that struck the victim in the legs, and a

physician who examined the victim after the attack testified that

he sustained abrasions to his legs and complained of left knee

pain. The victim was pinned to the floor during the assault and

sustained further injuries when defendant repeatedly kicked him

in the head, neck and chest. Indeed, one eyewitness testified

that defendant was "stomping [the victim] in the head." 

Defendant was wearing shoes when he did so, and it is clear that

"[b]oots or shoes worn while kicking a victim can constitute a

dangerous instrument under the assault statute" (People v Hines,

39 AD3d 968, 969 [2007], lv denied 9 NY3d 876 [2007]; see Penal

Law § 10.00 [13]; People v Carter, 53 NY2d 113, 116-117 [1981];

People v Lappard, 215 AD2d 245, 245 [1995], lv denied 86 NY2d 737

[1995]). Therefore, after assessing the evidence in a neutral

light and according due deference to the jury's assessment of

credibility, we perceive no basis to disturb the verdict (see

People v Danielson, 9 NY3d 342, 348-349 [2007]; People v

Archbold, 257 AD2d 676, 677-678 [1999], lv denied 93 NY2d 850

[1999]).

Defendant's remaining arguments do not require extended

discussion. Supreme Court properly rejected defendant's request

to submit the lesser included offense of assault in the third

degree to the jury because, even when viewed in a light most

favorable to defendant, "the jury could not have reasonably

concluded [from the trial evidence] that defendant 'committed

the[] lesser offense[] but not the greater'" (People v Boddie,
-3- 105567 

126 AD3d at 1132, quoting People v Brown, 100 AD3d 1035, 1037

[2012], lv denied 20 NY3d 1009 [2013]). Lastly, we perceive no

circumstances in this case that would warrant a reduction in the

sentence as harsh or excessive. Supreme Court imposed the

maximum sentence allowed, but that sentence appropriately took

into account the nature of the present offense and defendant's

prior criminal history (see People v Brabham, 126 AD3d 1040, 1044

[2015], lvs denied ___ NY3d ___ [June 15, 2015]; People v Baugh,

101 AD3d 1359, 1362-1363 [2012], lv denied 21 NY3d 911 [2013]).

Peters, P.J., Lahtinen and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court