PROCEDURAL INTRODUCTION A bench trial was held in this proceeding charging the defendant by misdemeanor information with one count of Criminal Obstruction of Breathing or Blood Circulation (P.L. §121.11), one count of Assault in the Third Degree (P.L. §120.00 (1)), one count of Menacing in the Second Degree (P.L. §120.14), one count of Criminal Possession of a Weapon in the Fourth Degree (P.L. §265.01), and one count of Harassment in the Second Degree (P.L. §240.26(1)). The defendant is charged with the above offenses for having an altercation with Tashani Graham, an employee of his restaurant. Defendant is alleged to have grabbed Ms. Graham by the neck and place her in a chokehold and as a result of his actions Ms. Graham was unable to talk, swallow or breathe, and sustained bruising on her face. It is further alleged that the defendant pulled Ms. Graham by her hair and grabbed her arms, and that as a result of his actions, Ms. Graham suffered bruising and pain to her arms. It is further alleged that the complainant grabbed a knife in self-defense and that another worker grabbed the knife from the victim, and after she no longer had the knife the Defendant chased Ms. Graham around the restaurant and placed her in another chokehold. It is further alleged that defendant’s actions caused Ms. Graham to be alarmed and annoyed and in fear for her wellbeing and physical safety. THE LAW A person is guilty of Criminal Obstruction of Breathing or Blood Circulation pursuant to P.L. §121.11, “when, with intent to impede the normal breathing or circulation of the blood of another person, he or she (a). applies pressure on the throat or neck of such person.” A person is guilty of Assault in the Third Degree pursuant to P.L. §120.00(1), when “with intent to cause physical injury to another person, he causes such injury to such person or to a third person.” (See Matter of Wanji W., 277 AD2d 243 [2nd Dept 2000]). Physical injury is defined as “impairment of physical condition or substantial pain” (P.L. §10.00; People v. Henderson, 92 NY2d 677 [1999]). A person is guilty of Criminal Possession of a Weapon in the Fourth Degree pursuant to P.L. §265.01(2) when “he or she possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.” A person is guilty of Menacing in the Second Degree pursuant to P.L. §120.14 when “he or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” A person is guilty of Harassment in the Second Degree pursuant to P.L. §240.26(1) when “with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same.” THE EVIDENCE AT TRIAL Both the complainant and the defendant testified at trial. In addition, Officer Stephanie Mendez of the Mount Vernon Police Department testified for the prosecution and Ms. Isheeda Small, Mr. Germaine Esson and Mr. Kyran Browne all testified on behalf of the defense. The evidence and testimony established that on October 17, 2020 at approximately 6:00 or 7:00pm, the complainant and defendant got into a verbal dispute that escalated into a physical altercation at Mangoville restaurant, located at 133 South 4th Avenue, Mt. Vernon NY. Defendant is the owner of the restaurant and Ms. Graham was employed as a chef. The People’s Case Ms. Graham testified that on the date and time alleged she was in the kitchen cooking a dish for a friend’s baby shower. She then got into a verbal dispute with the defendant. She maintains that she informed the defendant that she was going to cook this dish at the restaurant and that she gave him money to purchase food that she needed for the event. As the argument intensified, they moved to the back of the restaurant. She testified that during their verbal dispute, defendant fired her. She testified that she yelled to another employee to turn off the stoves and that they were leaving. Ms. Graham testified that as she was walking away towards the front of the establishment, defendant grabbed her by her hair/wig and placed her in a chokehold by placing both of his hands around her neck. She stated that she managed to get out of the defendant’s grasp and grabbed a knife from the meat shop area to defend herself. Ms. Graham stated that the defendant kept following her and was trying to fight her like she was a man. She further testified that a coworker, known to her as “Fathead”, took the knife from her. Ms. Graham stated that the defendant then grabbed her again and put her in another chokehold. She testified that she could not breath properly. She picked up her cell phone from the floor and called her brother. She stated that Fathead pulled the defendant off of her. Ms. Graham testified that she did not seek medical attention but had bruising on her arm, and pain in her neck and shoulder following the altercation with the defendant. She went to the police station the next day to report the incident to police. Mount Vernon Police Officer Stephanie Mendez testified that on October 18, 2020 she was assigned to the Patrol Division. As part of this assignment she is responsible for taking police reports for certain incidents. At approximately 10:00am, she received a call from dispatch to meet with the alleged victim of a reported dispute. Officer Mendez responded to the precinct and met with Ms. Graham, who is known to her as “Momma”. Ms. Graham was visibly upset. She told the officer that the defendant assaulted her in the kitchen of Mangoville restaurant following a verbal dispute about her cooking for another business without any additional compensation. She also told the officer that the defendant became irate, pulled her hair from behind, threw her against the wall and put her in a chokehold as she tried to walk away from the kitchen area. Ms. Graham told the officer that she did not have any trouble breathing at that point and managed to get free from the defendant. Once she got free from the defendant’s grasp, she picked up a knife and yelled at him to stay away and get away from me. Ms. Graham informed the officer that a coworker then came in and grabbed the knife from her and that the defendant put her in another chokehold. Ms. Graham told the officer that she was begging the defendant to let her go while saying “I can’t breathe” “I can’t breathe”. She told the officer that she did not feel like she was losing consciousness but had difficulty breathing when defendant let her go. The officer testified that she suggested that Ms. Graham go to the emergency room, but Ms. Graham declined. Office Mendez stated that she observed a bruise on the right side of Ms. Graham’s face and a “massive” bruise on the back of her left arm but that she could not say whether the bruises were fresh or old. She also testified that she did not observe any bruises on the defendant’s neck, so she did not see any signs of choking. The officer took photographs of the injuries. The People entered into evidence photographs of the Ms. Graham’s injuries marked as People’s Exhibit’s 1 — picture of left arm, Exhibit 2 left arm alleged to show bruising below the elbow and Exhibit 3 — picture of her Neck which had no bruising. The People also entered a CD of the interview of the Defendant when he was arrested. The Defense Case Defendant Estrado “Freddie” Willis testified that his occupation is store owner and that he indeed owned Mangoville where the alleged incident took place. He stated that he told “Mumza” (Tashani Graham) that he did not want her cooking in his kitchen when she was supposed to have a day off and the other chef was there cooking. He asked her why she was there, and she said she was cooking for her own personal catering. He then asked her to go to the back of the restaurant to talk because there were people there and they were getting loud. He stated that when they got to the back he told her she cannot be cooking for her personal business and as a result she started getting loud saying “he was greedy, he was messed up” and started going crazy. He testified that she opened the door and started knocking stuff off the stove. He testified that she came back and had a knife in her hand, and she was pointing it directly at him and that he stepped back. He said he watched her with the knife with his hands in his pocket and when she looked away, he grabbed her hand with the knife. Then he grabbed her by the arms and held her against the wall indicating he had a hand on the back of her neck and holding her arm with the knife in the air. He stated he held her like that for 15 seconds or so and that’s when another worker “Koosh” rushed in and grabbed the knife from her hand. He testified that at no time did she indicate or say to him that she had trouble breathing. He said after that she was walking around crazy and she was saying while on the phone “all guns out, come to Mangoville now” and that in the space of 5 minutes people came to Mangoville, including her brother. Defendant testified that it was like a zoo because there were so many people and that’s when he called the cops. He testified that when the cops got there, she said “you’re a rat, you’re a snitch you called the police”. Mr. Willis testified that the other chef asked him to just let it go and not to get the police involved so he did not talk to the police. He testified that he only restrained Ms. Graham one time by the neck and that was during the time he was trying to get the knife from her. On cross examination Mr. Willis indicated that witnesses Isheeda Small, Germaine Esson and Kyran Browne all work for him at Mangoville. Witness Kyran Browne testified on behalf of the defense. He stated that he had worked at Mangoville for almost one year as the smoothie guy. He stated that he was working at Mangoville on October 17, 2020 and that there was a commotion that day. He stated that his boss, the defendant and co-worker, Ms. Graham had a disagreement. He testified that the defendant and Ms. Graham were talking at first in the front and then someone told them to go around and talk in the back because they were getting loud and they had customers. Defendant and Ms. Graham went to the back. He couldn’t see what was going on at first and then he heard a noise like things dropping. He went around to the back and saw that defendant holding Ms. Graham, restraining her as she had a hook knife that they use to cut meat in the meat market. He stated that he went over and took the hook knife from her by holding her hand and pushing it back. He stated she started crying and saying that the Defendant had hit her, but he did not see the Defendant hit her. He testified that she started calling her family which included her brother. He stated he never saw the Defendant choke her or do anything to her except restrain her. He states that Ms. Graham was angry and cursing and had had an angry outburst before she and the Defendant went to the back of the store while the Defendant was mad also but not cursing. He stated that after the knife was out of her hands the Defendant went downstairs. Mr. Browne testified that one of his co-workers “Max” actually got cut by the knife as they all had rushed in to see what the commotion was all about. Witness Germain Esson testified on behalf of the defense. He stated that he has been working at Mangoville for three years as a meat bagger. He stated that the Defendant and Ms. Graham were tussling and then she grabbed a knife and that he tried to stop it but couldn’t. He stated this took place in the meat market where he works. He stated it did not take long only about 5 minutes. He stated that he got a little cut that bled a little. He indicated that there were about three people trying to get the knife away from her that he was trying to prevent the knife from “hitting” the Defendant. He stated after they got the knife she started to leave, and the police came. He said that Ms. Graham was still there when the police arrived. Witness Isheeda Small testified on behalf of the defense. She stated she had been working for Mangoville for about 3 years and that she was a server and cashier. Ms. Small testified that she was at Mangoville on October 17, 2020 when the incident happened. She stated that she observed the Defendant and Ms. Graham engaged in a conversation and then they went behind a door in the meat market where she could not hear them. Then all of a sudden, the door flew open and Ms. Graham came out of the door with a knife in her hand yelling “lock out the store, no more food no more cooking”. She testified that Ms. Graham was telling the other chef to turn off the stove, but the other chef did not pay attention to her. She stated that Ms. Graham started hitting the coffee-pot and other things “turning the place upside down”. Ms. Small testified further that Ms. Graham whacked a pot off the stove with her hand and knife and that everything in the kitchen was a mess. Ms. Small said the Defendant told Ms. Graham to “just leave”. She stated she too told Ms. Graham to just leave, to put the knife down. She stated that Ms Graham was waiving the knife in the Defendant’s face saying, “your greedy”. Ms. Small said she got in between Ms. Graham and the Defendant and since she kept swinging the knife she ducked underneath a cutting saw and asked someone to move Ms. Graham because she’s “consistent to she wants to fight Freddie (the Defendant)”. She then stated that the Defendant came and held Ms. Graham’s hands up and the other guys was trying to get the knife and that Ms. Graham swung the knife and cut the other guy. Then “Koosh” came; he is the person who got the knife out of Ms. Graham’s hand. Ms. Small said Ms. Graham got on the phone and was telling some people to come to Mangoville as “she was not done”. She further testified that at some point Ms. Graham’s brother and nephew came to Mangoville. She stated that no one punched or hit Ms. Graham because she was “there the whole time” and that the only time the Defendant touched her is when she had the knife and he was trying to shake the knife out of her hand. She stated that Ms. Graham was holding the knife tight. She stated after the incident the Defendant allowed her to take the food she was preparing and that she was even the one who handed her the food after the incident happened. She said the Defendant was right there and did not say anything but allowed her to get the food she had been preparing for her catering event. CONCLUSION AND DECISION After assessing the testimony of the witnesses, and other evidence in this case which includes photographs and a CD of the Defendant’s statement to the police, the Court finds that the People failed to demonstrate the Defendant’s guilt beyond a reasonable doubt. Significantly, Officer Mendez and Ms. Graham testified that she did not seek help from the police department until the day after the alleged event. The testimony also revealed that the police responded to the scene on the day in question and Ms. Graham did not speak to the police although she was still at the location. Additionally, Officer Mendez testified that she could not determine if the bruising she saw on Ms. Graham’s arm, the day after the incident, was “fresh” or old but stated unequivocally that there was no bruising to the neck or evidence of strangulation. Ms. Graham testified that she could not breath or swallow after the attack but did not seek medical attention on the day in question nor at any other time even when she went to the police station the next day and was asked if she wanted to go to the hospital. The evidence established that Ms. Graham did call her brother to come and assist her at the time of the incident but did not call the police for help even though she was allegedly injured. Ms Graham never testified that the Defendant had a weapon. Her own testimony, and that of all the other witnesses, was that she brandished a knife. In this regard, both charges Criminal Possession of Weapon in the Fourth Degree and Menacing in the Second Degree cannot be sustained — Defendant simply never possessed a weapon.1 With regard to the other charges specifically Obstruction of breathing or blood circulation — Apply Pressure; Assault in the Third Degree and Harassment 2nd, the evidence did not prove beyond a reasonable doubt that the defendant had the requisite “mens rea” for each of these crimes as the testimony in this case cast a reasonable doubt as to whether the Defendant intended to cause harm or was acting in self-defense. Based upon the foregoing, the Court finds the defendant not guilty of any of the charges in the misdemeanor information and said charges are dismissed. This constitutes the Decision and Order of this Court. Dated: March 10, 2021
