Calendar Date: March 29, 2018Before: Garry, P.J., Egan Jr., Devine, Aarons and Rumsey, JJ.__________Paul J. Connolly, Delmar, for appellant.P. David Soares, District Attorney, Albany (Emily A.Schultz of counsel), for respondent.__________Rumsey, J.Appeal from a judgment of the County Court of Albany County(Lynch, J.), rendered November 26, 2014, upon a verdictconvicting defendant of the crimes of coercion in the firstdegree, criminal possession of a weapon in the fourth degree andreckless endangerment in the second degree.One evening in December 2013, defendant’s then-girlfriend(hereinafter the victim) arrived at the two-story residence thatshe shared with defendant, his sister and his father. When thevictim spoke by telephone with defendant, who was not then athome, he demanded that she not leave the house. Approximatelyone-half hour later, defendant arrived home, kicked open the doorto their upstairs bedroom, where the victim was waiting, andbegan to strike her head with a closed fist while holding a knifein his other hand. During defendant’s attack on the victim,defendant’s father, who was on the first floor, called todefendant from the bottom of the stairs to ask what was happeningand, in response, defendant stated that the victim was “going todie” that night. Defendant continued to strike the victim andchoked her before ultimately stabbing her three times with theknife. When defendant went downstairs to obtain a rifle, thevictim called 911. Upon returning to the bedroom, defendanttaunted the victim with the gun by pointing it in her face andtelling her that she would never again see her son. Defendantthen went outside, armed with the knife and the rifle, butretreated to the inside of the home almost immediately afternoticing that the police were present. Defendant returned to thesecond floor and the gun discharged as defendant stood at the topof the stairs. The victim eventually escaped from the home anddefendant surrendered to the police several hours later.Defendant was thereafter charged by indictment withkidnapping in the second degree, assault in the second degree,criminal possession of a weapon in the third degree, coercion inthe first degree, strangulation in the second degree, criminalpossession of a weapon in the fourth degree, recklessendangerment in the second degree and menacing a police officer.After a jury trial, defendant was convicted of coercion in thefirst degree, criminal possession of a weapon in the fourthdegree and reckless endangerment in the second degree.1 CountyCourt sentenced defendant, as a second felony offender, to anaggregate prison term of 2 to 4 years and issued a no-contactorder in favor of the victim. Defendant appeals.Defendant argues that the evidence was legally insufficientto convict him of coercion in the first degree and recklessendangerment in the second degree and, further, that hisconvictions on these charges were against the weight of theevidence. “When considering a challenge to the legal sufficiencyof the evidence, we view the evidence in the light most favorableto the People and evaluate whether there is any valid line ofreasoning and permissible inferences which could lead a rationalperson to the conclusion reached by the jury on the basis of theevidence at trial and as a matter of law satisfy the proof andburden requirements for every element of the crime charged.Moreover, in assessing the weight of the evidence, where, ashere, a different verdict would not have been unreasonable, thisCourt must, like the trier of fact below, weigh the relativeprobative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from thetestimony” (People v Robinson, 156 AD3d 1123, 1124-1125 [2017][internal quotation marks and citations omitted], lv denied 30NY3d 1119 [2018]). In conducting a weight of the evidenceanalysis, we must give deference to the jury’s credibilityassessments (see People v Williams, 156 AD3d 1224, 1226 [2017]).With regard to his conviction for coercion in the firstdegree, defendant contends that there was insufficient evidenceestablishing that he compelled the victim to remain in the homeby threatening to kill her or by physically preventing her fromleaving. As relevant here, “[a] person is guilty of coercion inthe first degree when [such person] commits the crime of coercionin the second degree, and when . . . he or she commits such crimeby instilling in the victim a fear that he or she will causephysical injury to [the victim]” (Penal Law § 135.65 [1]). “Aperson is guilty of coercion in the second degree when he or shecompels or induces a person to engage in conduct which the latterhas a legal right to abstain from engaging in, or to abstain fromengaging in conduct in which he or she has a legal right toengage . . . by means of instilling in [the victim] a fear that,if the demand is not complied with, the actor . . . will . . .[c]ause physical injury to a person” (Penal Law § 135.60 [1]).It was undisputed that defendant demanded that the victimnot leave their home, that he pinned her down and punched herseveral times with a closed fist, choked her, stabbed her threetimes with a knife, verbally called her derogatory names,threatened her by stating that she would never again see her sonwhile pointing a gun in her face and discharged the gun in thehouse. The victim testified that defendant refused her requeststhat he permit her to leave the home — telling her that she wouldneed to wait until the next day to seek medical attention for herstab wounds — and that she did not leave the home because she wasunsure where his knife was and did not want to “escalate” thesituation. Viewing the evidence in the light most favorable tothe People, the evidence was legally sufficient to prove thatdefendant committed coercion in the first degree by compellingthe victim to remain in the home by instilling the fear that hewould physically injure her if she attempted to leave. Moreover,although an acquittal on this charge would not have beenunreasonable, when we view the same evidence in a neutral lightand defer to the jury’s credibility assessments, we find thatdefendant’s conviction for coercion in the first degree was notagainst the weight of the evidence.Defendant also contends that his reckless endangermentconviction was not supported by legally sufficient evidence. “Aperson is guilty of reckless endangerment in the second degreewhen he recklessly engages in conduct which creates a substantialrisk of serious physical injury to another person” (Penal Law§ 120.20). It is undisputed that the gun was fired from alocation near the top of the stairs on the second floor and thatthe bullet traveled downward through the ceiling of the firstfloor bathroom. The victim testified that she was in theadjacent bedroom when the gun was fired and that defendant’sfather was on the first floor. Defendant’s father testified thathe was on the second floor attempting to convince defendant tosurrender the weapon when it fired. Defendant argues that thedischarge of the gun could not have posed a substantial risk ofserious physical injury to anyone based on the testimony thatthere was no one on the first floor when the shot was fired and,further, that there was no proof that he fired the gun with therequisite intent. Viewing this evidence in the light mostfavorable to the People, we find that it is legally sufficient tosupport defendant’s conviction for reckless endangerment in thesecond degree. The victim’s testimony that defendant’s fatherwas on the first floor placed him in the general path of thebullet and, therefore, at substantial risk of injury. Moreover,defendant’s discharge of the gun also created the substantialrisk that the victim and defendant’s father — even if he wasstanding on the second floor near defendant — could have beeninjured by a ricocheting bullet or by a sudden movement into thepath of the bullet (see People v Byrd, 79 AD3d 1256, 1257 [2010];People v Graham, 14 AD3d 887, 889 [2005], lv denied 4 NY3d 853[2005]). With respect to intent, the victim’s testimony thatdefendant was alone when the gun discharged is a sufficient basisfor inferring that defendant intentionally fired the weapon.Moreover, although an acquittal on this charge would not havebeen unreasonable, when we view the same evidence in a neutrallight and defer to the jury’s credibility assessments, we findthat the conviction for reckless endangerment in the seconddegree was not against the weight of the evidence.Defendant next argues that County Court committedreversible error when it denied his request to charge him withcoercion in the second degree as a lesser included offense ofcoercion in the first degree. “To establish entitlement to alesser included offense charge, a defendant must demonstratethat, in all circumstances, it is impossible to commit thegreater crime without concomitantly, by the same conduct,committing the lesser offense and, secondarily, that there is areasonable view of the evidence that would support a finding thathe or she committed the lesser offense but not the greater”(People v Luciano, 152 AD3d 989, 994 [2017] [internal quotationmarks, brackets and citations omitted], lv denied 30 NY3d 1020[2017]). In determining whether defendant was entitled to thelesser included charge of coercion in the second degree, “we mustview the evidence in the light most favorable to defendant” (id.at 995 [internal quotation marks and citation omitted]).The Court of Appeals has “recognized that the crimes ofcoercion in the first and second degree are identical when thecoercion is committed by instilling a fear that a person will bephysically injured or that property will be damaged” (People vFinkelstein, 28 NY3d 345, 348 [2016] [internal quotation marksand citation omitted]). It explained, however, “that the felonyof coercion in the first degree [must] be charged whenever themethod of coercion was to instill a fear of injury to a person ordamage to property” (id. [internal quotation marks, ellipsis andcitation omitted]). As such, the Court continued, “second-degreecoercion should be charged as a lesser included offense only inthe unusual factual situation in which the coercion by threat ofpersonal or property injury lacks the heinousness ordinarilyassociated with this manner of commission of the crime . . .[i.e., where] the threatened physical injury is not trulyfearsome” (id. at 349 [internal quotation marks and citationomitted]). This case does not present one of those unusualfactual situations that would justify charging coercion in thesecond degree as a lesser included offense in light of theevidence showing that defendant threatened to kill the victim,pinned her to the ground with his body, choked her, stabbed herthree times with a knife and threatened that she would neveragain see her son while holding a gun in her face. Thus, CountyCourt properly denied defendant’s motion to charge the lesserincluded offense of coercion in the second degree.2Finally, defendant argues that County Court erred when itpermitted police officers to testify, over his objection,regarding his refusal to communicate with them while he remainedin the home after the victim left, the various efforts made bythe police to induce defendant to vacate the residence, hisrefusal to exit until they fired tear gas into the home and hisrefusal to communicate with them after he surrendered. Assuming,without deciding, that the testimony regarding defendant’sinteraction with the police was not relevant to commission of thecrimes with which he was charged or necessary to complete acoherent narrative of the relevant events, we nonethelessconclude that any error in admitting such testimony was harmlessbeyond a reasonable doubt because there was no reasonablepossibility that the error might have contributed to defendant’sconviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975];People v Gray, 151 AD3d 1470, 1472 [2017], lv denied 30 NY3d 949[2017], cert denied ___ US ___, 138 S Ct 1295 [2018]; People vSprague, 267 AD2d 875, 880 [1999], lv denied 94 NY2d 925 [2000]).Garry, P.J., Egan Jr., Devine and Aarons, JJ., concur.ORDERED that the judgment is affirmed.ENTER:Robert D. MaybergerClerk of the Court
