Assault charge dismissed, other convictions affirmed

Listen to this article

The Appellate Division of state Supreme Court, Fourth Department, has reversed an assault conviction and dismissed the charge.

Defendant Ghanem Abughanem was convicted in Erie County Court in February 2016 before Judge James A. McLeod of second-degree strangulation, criminal obstruction of breathing or blood circulation and two counts of third-degree assault.

Abughanem was accused of attacking his wife. His appellate lawyer argued that Abughanem was deprived of a fair trial because, on numerous occasions, the judge “improperly intervened in the interpreters’ translation of testimony from the complainant and defendant by supplying the interpreters and witnesses with instructions,” according to the decision.

Abughanem’s lawyer also argued that he was deprived of a fair trial due to errors in the interpreters’ translation of witness testimony.

“We conclude that those contentions are unpreserved because, as defendant correctly concedes, defense counsel did not object to any of the alleged improprieties at trial,” the court ruled.

The Fourth Department also rejected the Abughanem’s claim that he was denied effective assistance of counsel because his trial lawyer failed to object to those supposed improprieties.

“The incidents where the judge intervened with the interpreters and the witnesses to provide instructions did not deprive defendant of a fair trial,” the Fourth Department panel ruled.

The defense also argued that the evidence was insufficient to support the convictions.

“We conclude that there is a valid line of reasoning and permissible inferences that could lead a rational person to conclude that defendant is guilty under counts one, two, and three of the indictment,” the panel ruled.

The defendant’s wife testified that Abughanem put his hands around her neck and choked her from behind, constricting her breathing by applying force to the back of her neck with his thumbs while his fingers wrapped around to her throat, according to the decision.

She also testified that after Abughanem released his hold on her neck he wrapped a blanket around her head and neck and used it to choke her until she lost consciousness. A photograph of Abughanem’s wife, taken at the hospital, shows bruising to her neck area.

“With respect to count three, we conclude that a rational jury could have inferred beyond a reasonable doubt that defendant committed assault in the third degree by punching the complainant in the face, which caused her to sustain a physical injury,” the court ruled.

Abughanem’s wife testified that Abughanem hit her in the face, just above her mouth, with the cell phone in his hand.

The first responders testified that Abughanem’s wife was bleeding from her nose and mouth when they arrived, and photographs taken at the hospital documented her bloody mouth and swollen lips.

“We agree with defendant, however, that the evidence is legally insufficient to support his conviction of assault in the third degree under count four of the indictment,” the panel ruled.

Under that count, the defendant was accused of causing physical injury by jumping on her back.

“We conclude that the People failed to present evidence establishing beyond a reasonable doubt that she sustained a physical injury during that part of the encounter,” the panel wrote.

“There are no photographs of any back injuries or any evidence that the complainant suffered from substantial back pain following the incident,” the court ruled.

[email protected] / (585) 232-2035