People v Dalrymple (Kelvin)
2017-1556 Q CR
Appellate Term, Second Department, 2d, 11th and 13th JUDICIAL DISTRICTS
February 19, 2021
2021 NY Slip Op 50124(U) | 70 Misc 3d 140(A)
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
Published by New York State Law Reporting Bureau pursuant to
Appeal from two judgments of the Criminal Court of the City of New York, Queens County (John Zoll, J.), rendered July 19, 2017. The judgments convicted defendant, upon his pleas of guilty, of assault in the third degree, in satisfaction of docket 2016QN049226, and obstructing governmental administration in the second degree, in satisfaction of docket CR-011614-17QN, and imposed sentences.
ORDERED that the judgments of conviction are affirmed.
In 2016, defendant was charged in docket 2016QN049226 with assault in the third degree (
Since defendant expressly waived prosecution by information, the accusatory instruments must be evaluated under the standards that govern a misdemeanor complaint (see People v Dumay, 23 NY3d 518, 524 [2014]); namely, each is sufficient on its face if it contains factual allegations of an evidentiary character supporting or tending to support the charge (see
With respect to the 2016 docket, the allegations of the accusatory instrument that “defendant punched [the complainant] in the face causing a bleeding laceration and swelling to his lip,” as well as substantial pain, render the charge of assault in the third degree, to which defendant pleaded guilty, jurisdictionally sufficient (see e.g. People v Cordova, 62 Misc 3d 148[A], 2019 NY Slip Op 50227[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Raymond, 51 Misc 3d 149[A], 2016 NY Slip Op 50834[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Biamonte, 19 Misc 3d 139[A], 2008 NY Slip Op 50896[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).
It is alleged in the accusatory instrument for the 2017 docket that a police officer observed a vehicle, in which defendant was a front seat passenger, “accelerat[ing] at a high rate of speed,” leading to the effectuation of a traffic stop. “[U]pon asking multiple times for the defendant and the apprehended other to step out of the vehicle, both . . . refused.” Subsequently, an officer “recovered a black and silver knife from the center console of the . . . vehicle” and “a bag which contained 41 bags containing a quantity of marijuana which [h]as an aggregate weight of 46 grams and a scale from the front passenger seat floor of the . . . vehicle,” where defendant was seated.
Defendant asserts that the allegation of the vehicle “accelerat[ing] at a high rate of speed” does not necessarily mean the vehicle was traveling faster than the speed limit, and therefore the accusatory instrument fails to sufficiently demonstrate that the traffic stop constituted an “official function.” This argument, however, disregards the requirement of the Court of Appeals that “the factual allegations of an [accusatory instrument] . . . be given a fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]). Instead, we “draw[] reasonable inferences from all the facts set forth in the accusatory instrument” (People v Jackson, 18 NY3d 738, 747 [2012]), and find that the allegation of a “high rate of speed” reasonably implies that the vehicle was speeding unlawfully, i.e., whether “at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing,” in violation of
“[i]n light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car. . . . Consequently, when defendant refused to exit the vehicle, the officer . . . had probable cause to arrest defendant for a violation of
Because defendant pleaded guilty to the facially sufficient, top count of the accusatory instrument for the 2017 docket, we do not pass upon his now-academic averment that each of the three other charges are facially insufficient (see People v Anderson, 66 Misc 3d 138[A], 2020 NY Slip Op 50091[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
Accordingly, the judgments of conviction are affirmed.
WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 19, 2021