Martin Gugino, the 75-year-old activist who sustained a fractured skull (and could not walk for a time) when he was shoved to a concrete sidewalk by police in Buffalo, NY, has been released from a hospital, according to a report at CNN:
Martin Gugino, the 75-year-old protestor who was pushed by two Buffalo police officers in early June, has left the hospital, his lawyer Kelly Zarcone said in a statement on Tuesday.Despite the severity of Gugino's injuries, our research indicates prosecutors will have difficulty getting convictions on assault charges against the two cops who pushed Gugino. That's because New York law, as in many other states (including Alabama), requires the state on second-degree assault to prove that not only defendants intended to assault the victim, but that they also intended to cause him serious physical injury.
Gugino will continue his recovery at an undisclosed location to ensure privacy. Zarcone said that Gugino can "walk with a little help" and that his condition will continue to improve with time and rest.
That almost seems to require mind reading, so how can it be proven in a court of law? Our research of New York case law indicates it can be done, but it generally comes down to two words: "readily inferable." Let's look at a relevant New York case:
New York v. Adam M. Hadfield, 2014 NY Slip Op 05462
Defendant was convicted, after a nonjury trial, of assault in the second degree. The charge stemmed from his conduct, while incarcerated at the St. Lawrence County Correctional Facility, in kicking another inmate in the face during a game in the recreational yard. When questioned by Correction Sergeant Jeffrey Bercume, defendant admitted that he had kicked the victim in the face because he was annoyed with him, but asserted that it had been accidental. The incident was recorded by facility cameras, and a video thereof was played and admitted into evidence at trial. Upon his conviction, defendant was sentenced as a second felony offender to a prison term of seven years with three years of postrelease supervision, to be served concurrently to the aggregate 53-year prison term imposed on the same date for unrelated convictions. Defendant now appeals.
The Law (most citations omitted):
Contrary to defendant's claims, the verdict is supported by legally sufficient evidence and is not contrary to the weight of the credible evidence. To prove that defendant committed the crime of assault in the second degree as charged, the People were required to establish that, while incarcerated after having been charged or convicted of a crime, defendant intentionally caused physical injury to another person (see Penal Law § 120.05 ). Defendant conceded that, at the time of the incident, he was incarcerated and had been charged with numerous sex offenses and other crimes; he challenges only the evidence of his intent and of the victim's physical injuries. Viewing the evidence, particularly the video of the assault, in the light most favorable to the People and affording them the benefit of every favorable inference, as we must on a legal sufficiency review, we find that the People established beyond a reasonable doubt that defendant intentionally caused physical injury to the victim (see People v Bleakley, 69 NY2d at 495). His intent was readily inferable from the deliberate, forceful and unprovoked conduct itself and the surrounding circumstances, all of which were clearly captured on the video . The People proved that the victim had sustained "physical injury" with evidence that he remained crouched down for several minutes after the assault and was later found disoriented and injured in his cell with a swollen face and cut lip, experiencing a high level of pain. The victim had no memory of the incident or of the surrounding time period, and the medical evidence established that he had sustained a concussion (see Penal Law § 10.00 . As "there is a[ ] valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [factfinder] on the basis of the evidence at trial" , we find that the evidence was legally sufficient.
Upon our independent review of the weight of the credible evidence, we find that, in light of the video of the assault unmistakably demonstrating defendant's intent to cause physical injury to the victim, a different verdict would have been unreasonable. Even if a different verdict would have been reasonable , viewing the probative force of the conflicting evidence in a neutral light and according deference to the credibility determinations of County Court, as factfinder, given its ability to view the witnesses firsthand, we are satisfied that the verdict was not contrary to the weight of the evidence. The court rationally rejected as incredible defendant's explanation that his actions in kicking the victim in the face were accidental or part of the game, as his conduct can only reasonably be viewed as intentional.
In Hadfield, the presence of video was a central factor in the state's ability to prove intent to injure and achieve a conviction. Will video of the Gugino incident provide a similar boost to the state's case? That, it seems to us, is a close call -- and it will depend on a court's interpretation of the video and other evidence in light of the words "readily inferable."
We will be following the proceedings from afar.
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