People v. Myers, 87 A.D.3d 826 (N.Y. App. Div. 2011). · Go Syfert
People v. Myers, 87 A.D.3d 826 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
38 citation events (38 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Hills (nyappdiv, 2025-01-31)
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Hills
N.Y. App. Div. · 2025 · confidence medium
Inasmuch as we find the trial evidence to be legally sufficient, we need not consider defendant's contention in his pro se supplemental brief that the indictment was not based on legally sufficient evidence before the grand jury ( see CPL 210.30 [6]; People v Thomas , 173 AD3d 1845 , 1846 [4th Dept 2019]; People v Figueroa , 156 AD3d 1348, 1349-1350 [4th Dept 2017], lv denied 31 NY3d 1013 [2018]), and we reject defendant's additional contention in his pro se supplemental brief that defense counsel was ineffective in failing to make a specific motion for a trial order of dismissal inasmuch as "…
discussed Cited as authority (rule) People v. McKoy
N.Y. App. Div. · 2023 · confidence medium
Contrary to defendant's related contention, we conclude that the court did not err in admitting in evidence a letter allegedly written by defendant to the acquaintance inasmuch as the circumstantial evidence was sufficient to authenticate the letter ( see People v Myers , 87 AD3d 826, 827-828 [4th Dept 2011], lv denied 17 NY3d 954 [2011]; People v Bryant , 12 AD3d 1077 , 1079 [4th Dept 2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. McKoy
N.Y. App. Div. · 2023 · confidence medium
Contrary to defendant's related contention, we conclude that the court did not err in admitting in evidence a letter allegedly written by defendant to the acquaintance inasmuch as the circumstantial evidence was sufficient to authenticate the letter ( see People v Myers , 87 AD3d 826, 827-828 [4th Dept 2011], lv denied 17 NY3d 954 [2011]; People v Bryant , 12 AD3d 1077 , 1079 [4th Dept 2004], lv denied 4 NY3d 761 [2005]).
discussed Cited as authority (rule) People v. Perkins
N.Y. App. Div. · 2022 · confidence medium
The People provided an adequate foundation for the recording of the phone call by submitting evidence about how the recording was generated, that the recording was unaltered and that defendant was one of the speakers in the recording based on the content of the conversation and the identification of his voice by witnesses who knew him well, including the other party to the conversation ( see People v Lancaster , 121 AD3d at 1304; People v Myers , 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011]).
discussed Cited as authority (rule) People v. Youngblood
N.Y. App. Div. · 2022 · confidence medium
Defendant failed to establish the absence of a strategic or other legitimate explanation for defense counsel's failure to request a lesser included offense ( see People v Spencer , 183 AD3d 1258, 1259-1260 [4th Dept 2020], lv denied 35 NY3d 1070 [2020]; People v Collins , 167 AD3d 1493 , 1498 [4th Dept 2018], lv denied 32 NY3d 1202 [2019]; see generally [*2]People v Rivera , 71 NY2d 705, 709 [1988]) and failure to request a missing witness instruction with respect to defendant's girlfriend ( see People v Shepard , 171 AD3d 951 , 952 [2d Dept 2019]; People v Myers , 87 AD3d 826, 828 [4th Dept 2…
discussed Cited as authority (rule) People v. Spagnuolo
N.Y. App. Div. · 2019 · confidence medium
Insofar as he contends that defense counsel was ineffective in failing to seek the missing witness charge in a timely manner, we conclude that defendant "failed to establish the absence of a legitimate explanation for defense counsel's failure to do so" ( People v Myers [appeal No. 1], 87 AD3d 826, 828 [4th Dept 2011], lv denied 17 NY3d 954 [2011]).
discussed Cited as authority (rule) People v. Pendell
N.Y. App. Div. · 2018 · confidence medium
The circumstantial evidence, including the inmate's testimony and the content of the notes themselves, satisfied the authentication requirement ( see People v Jackson , 125 AD3d 1002, 1003 [2015], lv denied 25 NY3d 1202 [2015]; People v Myers , 87 AD3d 826, 827-828 [2011], lv denied 17 NY3d 954 [2011]; People v Bryant , 12 AD3d 1077 , 1079 [2004], lv denied 4 NY3d 761 [2005]; People v Thomas , 272 AD2d 892, 893 [2000], lv denied 95 NY2d 858 [2000]).
cited Cited as authority (rule) People v. Fedrick
N.Y. App. Div. · 2017 · confidence medium
Defense counsel’s failure to request a missing witness charge did not render his assistance ineffective (see People v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011]).
discussed Cited as authority (rule) People v. Coleman
N.Y. App. Div. · 2015 · signal: cf. · confidence medium
Although the evidence at trial established that, after defendant hit the victim in the face with a gun, the victim sustained a small bruise with some swelling beneath the eye and felt some pain, the victim also testified that he did not seek medical attention, and there was no testimony about the extent or duration of the victim’s pain or whether the injury curtailed the victim’s activities (see People v Perry, 122 AD3d 775, 775-776 [2014], lv denied 24 NY3d 1122 [2015]; People v Zalevsky, 82 AD3d 1136 , 1137 [2011], lv denied 19 NY3d 978 [2012], reconsideration denied 19 NY3d 1106 [2012];…
discussed Cited as authority (rule) People v. Coleman
N.Y. App. Div. · 2015 · signal: cf. · confidence medium
Although the evidence at trial established that, after defendant hit the victim in the face with a gun, the victim sustained a small bruise with some swelling beneath the eye and felt some pain, the victim also testified that he did not seek medical attention, and there was no testimony about the extent or duration of the victim’s pain or whether the injury curtailed the victim’s activities (see People v Perry, 122 AD3d 775, 775-776 [2014], lv denied 24 NY3d 1122 [2015]; People v Zalevsky, 82 AD3d 1136 , 1137 [2011], lv denied 19 NY3d 978 [2012], reconsideration denied 19 NY3d 1106 [2012];…
discussed Cited as authority (rule) People v. Hailey
N.Y. App. Div. · 2015 · confidence medium
Contrary to defendant’s contention, the testimony of the eyewitness was not incredible as a matter of law, i.e., “impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v Errington, 121 AD3d 1553, 1555 [2014] [internal quotation marks omitted]; see People v Ponzo, 111 AD3d 1347, 1348 [2013]; People v Myers, 87 AD3d 826, 827 [2011], lv denied 17 NY3d 954 [2011]).
discussed Cited as authority (rule) People v. Hailey
N.Y. App. Div. · 2015 · confidence medium
Contrary to defendant’s contention, the testimony of the eyewitness was not incredible as a matter of law, i.e., “impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v Errington, 121 AD3d 1553, 1555 [2014] [internal quotation marks omitted]; see People v Ponzo, 111 AD3d 1347, 1348 [2013]; People v Myers, 87 AD3d 826, 827 [2011], lv denied 17 NY3d 954 [2011]).
discussed Cited as authority (rule) People v. Smith
N.Y. App. Div. · 2014 · confidence medium
There was no indication that the witness would have provided noncumulative testimony favorable to the People (see People v Hicks, 110 AD3d 1488 , 1489 [2013], lv denied 22 NY3d 1156 [2014]; People v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011]; see generally People v Savinon, 100 NY2d 192, 197 [2003]).
discussed Cited as authority (rule) People v. Smith
N.Y. App. Div. · 2014 · confidence medium
There was no indication that the witness would have provided noncumulative testimony favorable to the People (see People v Hicks, 110 AD3d 1488 , 1489 [2013], lv denied 22 NY3d 1156 [2014]; People v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011]; see generally People v Savinon, 100 NY2d 192, 197 [2003]).
discussed Cited as authority (rule) People v. Hicks
N.Y. App. Div. · 2013 · confidence medium
Further, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) People v. Hicks
N.Y. App. Div. · 2013 · confidence medium
Further, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) People v. Snyder
N.Y. App. Div. · 2012 · confidence medium
Defendant failed to preserve for our review his contention that the admission in evidence of hospital and dental records violated his right of confrontation inasmuch as he failed to object to the admission of those records (see People v Snyder, 91 AD3d 1206, 1213 [2012], lv denied 19 NY3d 968 [2012]; People v Myers, 87 AD3d 826, 829 [2011], lv denied 17 NY3d 954 [2011]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
discussed Cited as authority (rule) People v. Snyder
N.Y. App. Div. · 2012 · confidence medium
Defendant failed to preserve for our review his contention that the admission in evidence of hospital and dental records violated his right of confrontation inasmuch as he failed to object to the admission of those records (see People v Snyder, 91 AD3d 1206, 1213 [2012], lv denied 19 NY3d 968 [2012]; People v Myers, 87 AD3d 826, 829 [2011], lv denied 17 NY3d 954 [2011]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
discussed Cited as authority (rule) DONALDSON, SR., KEVIN L., PEOPLE v
N.Y. App. Div. · 2011 · confidence medium
Both witnesses testified that the recording was accurate and unaltered, and “[t]he People thus established that the offered evidence [was] genuine and that there [had] been no tampering with it” (People v Myers, 87 AD3d 826, 828 [internal quotation marks omitted]; see generally People v Ely, 68 NY2d 520, 527-528 ).
discussed Cited as authority (rule) People v. Donaldson
N.Y. App. Div. · 2011 · confidence medium
Both witnesses testified that the recording was accurate and unaltered, and “[t]he People thus established that the offered evidence [was] genuine and that there [had] been no tampering with it” (People v Myers, 87 AD3d 826, 828 [2011] [internal quotation marks omitted]; see generally People v Ely, 68 NY2d 520, 527-528 [1986]).
discussed Cited "see" People v. Box
N.Y. App. Div. · 2016 · signal: see · confidence high
Although defense counsel failed to make certain motions, “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005]), and “[defendant . . . failed to demonstrate a lack of strategic or other legitimate explanations for defense counsel’s alleged ineffectiveness in . . . failing to request” certain jury instructions, including a missing witness charge (People v Hicks, 110 AD3d 1488 , 1489 [2013], lv denied 22 NY3d 1156 [2014]; see…
discussed Cited "see" BOX, BRANDON W., PEOPLE v
N.Y. App. Div. · 2016 · signal: see · confidence high
Although defense counsel failed to make certain motions, “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 ), and “[d]efendant . . . failed to demonstrate a lack of strategic or other legitimate explanations for defense counsel’s alleged ineffectiveness in . . . failing to request” certain jury instructions, including a missing witness charge (People v Hicks, 110 AD3d 1488, 1489 , lv denied 22 NY3d 1156 ; see People v Myers, 8…
discussed Cited "see" People v. Box
N.Y. App. Div. · 2016 · signal: see · confidence high
Although defense counsel failed to make certain motions, “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005]), and “[defendant . . . failed to demonstrate a lack of strategic or other legitimate explanations for defense counsel’s alleged ineffectiveness in . . . failing to request” certain jury instructions, including a missing witness charge (People v Hicks, 110 AD3d 1488 , 1489 [2013], lv denied 22 NY3d 1156 [2014]; see…
discussed Cited "see" People v. Mitchell
N.Y. App. Div. · 2015 · signal: see · confidence high
The order of protection, which indicated that the defendant was present in court when it was issued and that the defendant was advised of it, constituted a contemporaneous record of objective facts and was not directly accusatory” (People v Lino, 65 AD3d 1263 , 1264 [2009], lv denied 13 NY3d 940 [2010]; see People v Myers, 87 AD3d 826, 829 [2011], lv denied 17 NY3d 954 [2011]; see generally People v Pealer, 20 NY3d 447, 453 [2013], cert denied 571 US —, 134 S Ct 105 [2013], rearg denied 24 NY3d 993 [2014]).
discussed Cited "see" People v. Mitchell
N.Y. App. Div. · 2015 · signal: see · confidence high
The order of protection, which indicated that the defendant was present in court when it was issued and that the defendant was advised of it, constituted a contemporaneous record of objective facts and was not directly accusatory” (People v Lino, 65 AD3d 1263 , 1264 [2009], lv denied 13 NY3d 940 [2010]; see People v Myers, 87 AD3d 826, 829 [2011], lv denied 17 NY3d 954 [2011]; see generally People v Pealer, 20 NY3d 447, 453 [2013], cert denied 571 US —, 134 S Ct 105 [2013], rearg denied 24 NY3d 993 [2014]).
discussed Cited "see" MITCHELL, MANNIX A., PEOPLE v
N.Y. App. Div. · 2015 · signal: see · confidence high
The order of protection, which indicated that the defendant was present in court when it was issued and that the defendant was advised of it, constituted a contemporaneous record of objective facts and was not directly accusatory” (People v Lino, 65 AD3d 1263, 1264 , lv denied 13 NY3d 940 ; see People v Myers, 87 AD3d 826, 829 , lv denied 17 NY3d 954 ; see generally People v Pealer, 20 NY3d 447, 453 , cert denied ___ US ___, 134 S Ct 105 , rearg denied 24 NY3d 993 ).
discussed Cited "see" People v. Mirabella
N.Y. App. Div. · 2015 · signal: see · confidence high
Defense counsel also was not ineffective for failing to seek a missing witness charge with respect to two witnesses, because “[t]here was no indication that the witness[es] would have provided noncumulative testimony favorable to the People” (People v Smith, 118 AD3d 1492, 1493 [2014]; see People v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011]).
discussed Cited "see" People v. Mirabella
N.Y. App. Div. · 2015 · signal: see · confidence high
Defense counsel also was not ineffective for failing to seek a missing witness charge with respect to two witnesses, because “[t]here was no indication that the witness[es] would have provided noncumulative testimony favorable to the People” (People v Smith, 118 AD3d 1492, 1493 [2014]; see People v Myers, 87 AD3d 826, 828 [2011], lv denied 17 NY3d 954 [2011]).
discussed Cited "see" MIRABELLA, TODD C., PEOPLE v
N.Y. App. Div. · 2015 · signal: see · confidence high
Defense counsel also was not ineffective for failing to seek a missing witness charge with respect to two witnesses, because “[t]here was no indication that the witness[es] would have provided noncumulative testimony favorable to the People” (People v Smith, 118 AD3d 1492, 1493 ; see People v Myers, 87 AD3d 826, 828 , lv denied 17 NY3d 954 ).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Nathaniel Myers
Appeal No. 1.
Appellate Division of the Supreme Court of the State of New York.
Aug 19, 2011.
87 A.D.3d 826
Cited by 38 opinions  |  Published
Memorandum:

In appeal No. 1, defendant appeals from a judgment convicting him following a bench trial of assault in the second degree (Eenal Law § 120.05 [2]) and criminal possession of a weapon in the third degree (§ 265.02 [1]) and, in appeal No. 2, defendant appeals from a judgment convicting him following the same bench trial of criminal contempt in the second degree (§ 215.50 [3]). Defendant failed to preserve for[*827] our review his contention in appeal No. 1 that the evidence is legally insufficient to establish that the victim, his ex-wife, sustained a physical injury to support the conviction of assault (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention is without merit. A person is guilty of assault in the second degree when, “[w]ith intent to cause physical injury to another person, he [or she] causes such injury to such person . . . by means of a deadly weapon or dangerous instrument” (§ 120.05 [2]). Physical injury is defined as “impairment of physical condition or substantial pain” (§ 10.00 [9]). Here, the evidence presented at trial established that defendant struck the victim in the head with a glass liquor bottle, knocking her to the ground. The victim was bleeding from the wound and was taken to the hospital, where she received pain medication, a hematoma on her head was drained, and she received stitches. The victim described the pain after it occurred as “more than ten” on a scale of 1 to 10. She was prescribed a narcotic drug for pain relief, and she testified that she continued to have pain in the days that followed. She returned to the hospital five more times for further treatment of her wound, and the wound has left a scar. Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is a valid line of reasoning and permissible inferences that could lead a rational trier of fact to find beyond a reasonable doubt that the victim sustained a physical injury {see People v Rojas, 61 NY2d 726 [1984]; People v Krotoszynski, 43 AD3d 450, 452-453 [2007], lv denied 9 NY3d 962 [2007]; People v Holmes, 9 AD3d 689, 690-691 [2004], lv denied 3 NY3d 675 [2004]).

Also with respect to appeal No. 1, viewing the evidence in light of the elements of the crimes of assault in the second degree and criminal possession of a weapon in the third degree in this bench trial {see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence with respect to those crimes {see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant’s contention, the testimony of the two main prosecution witnesses “was not incredible as a matter of law inasmuch as it was not impossible of belief, i.e., it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v Harris, 56 AD3d 1267, 1268 [2008], lv denied 11 NY3d 925 [2009]; see People v Thomas, 272 AD2d 892, 893 [2000], lv denied 95 NY2d 858 [2000]).

Defendant further contends with respect to appeal Nos. 1 and 2 that County Court erred in admitting in evidence three letters[*828] allegedly written by defendant to the victim and a recorded telephone conversation between defendant and the victim. We reject that contention. With respect to the letters, ‘‘[c]ircumstantial evidence may satisfy the requirement that a writing be authenticated before it may be introduced” (People v Murray, 122 AD2d 81, 82 [1986], lv denied 68 NY2d 916 [1986]; see People v Manganaro, 218 NY 9, 13 [1916]; Thomas, 272 AD2d at 893). Although the victim testified that the letters were not in defendant’s handwriting, the People established a sufficient foundation to admit the letters in evidence (see Thomas, 272 AD2d at 893). “The letters refer to the crime [of assault] and the circumstances of the prosecution in terms that justify the inference that defendant wrote them” (id.; see People v Bryant, 12 AD3d 1077, 1079 [2004], lv denied 4 NY3d 761 [2005]). In addition, the victim testified that she knew that defendant was the author of the letters based on certain information in the letters, including the nicknames of both the victim and defendant (see Bryant, 12 AD3d at 1079; Murray, 122 AD2d at 82). With respect to the recorded telephone conversation between defendant and the victim while defendant was incarcerated, the People established a sufficient foundation for its admission in evidence (see People v Williams, 55 AD3d 1398 [2008], lv denied 11 NY3d 901 [2008]; see generally People v Ely, 68 NY2d 520, 527-528 [1986]). The victim identified the voice on the tape as defendant’s voice, and she recalled the conversation. In addition, the deputy in charge of maintaining the recording system at the jail described the procedure for recording telephone conversations and testified that the recording had not been altered in any way. The People thus established “ ‘that the offered evidence [was] genuine and that there [had] been no tampering with it’ ” (Ely, 68 NY2d at 527; see People v Manor, 38 AD3d 1257, 1258 [2007], lv denied 9 NY3d 847 [2007]).

Defendant contends with respect to both appeals that he was denied effective assistance of counsel. We reject that contention. Insofar as he contends that defense counsel was ineffective in failing to seek a missing witness charge, we note that defendant failed to establish the absence of a legitimate explanation for defense counsel’s failure to do so (see People v Benevento, 91 NY2d 708, 712-713 [1998]; People v Maryon, 20 AD3d 911, 913 [2005], lv denied 5 NY3d 854 [2005]). Indeed, “[a]bsent proof that such witness would have provided noncumulative testimony which was favorable to [the prosecution], there was no basis for such a charge” (People v Thomas, 299 AD2d 942, 943 [2002], lv denied 99 NY2d 620 [2003] [internal quotation marks omitted]; see generally People v Savinon, 100 NY2d 192, 197 [2003]). Furthermore, contrary to defendant’s contention, the fact that[*829] defense counsel made a general rather than a specific motion for a trial order of dismissal is of no moment where, as here, a specific motion would have had little or no chance of success (see People v Hunter, 70 AD3d 1388, 1389 [2010], lv denied 15 NY3d 751 [2010]; see generally People v Caban, 5 NY3d 143, 152 [2005]). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).

Finally, in his pro se supplemental brief defendant contends with respect to both appeals that the court violated Crawford v Washington (541 US 36 [2004]) when it admitted in evidence at trial various documents and photographs, i.e., medical records of the victim, orders of protection, defendant’s prior certificate of conviction, and photographs depicting the victim’s injuries. Defendant failed to preserve his contention for our review (see CPL 470.05 [2]), and it is without merit in any event. Defendant has not identified any testimonial statements in the victim’s medical records that he contends were admitted in violation of Crawford. Inasmuch as the victim testified and was available for cross-examination, any statements attributed to her in the medical records would not violate defendant’s right of confrontation under the Sixth Amendment to the United States Constitution. In addition, the orders of protection were not testimonial in nature (see People v Lino, 65 AD3d 1263, 1264 [2009], lv denied 13 NY3d 940 [2010]), and defendant’s prior certificate of conviction also was not admitted in violation of Crawford (see People v McCallie, 37 AD3d 1129, 1130 [2007], lv denied 8 NY3d 987 [2007]). Finally, the photographs depicting the victim’s injuries are demonstrative rather than testimonial evidence (see generally Crawford, 541 US at 51-53). Present — Smith, J.P., Centra, Fahey, Gorski and Martoche, JJ.