People v. Small

Appellate Division of the Supreme Court of the State of New York

Sep 11, 2013

Versions:109 A.D.3d 842

971 N.Y.S.2d 212

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Ordered that the judgment is affirmed.

Contrary to the defendant‘s contention, the indictment was not jurisdictionally defective, as it cited the applicable statutes and sufficiently tracked the language thereof to give him fair notice of the charges against him (see CPL 200.50 [7] [a]; People v Cioffi, 105 AD3d 971 [2013]; People v Smith, 98 AD3d 533 [2012]).

The defendant‘s remaining contentions are without merit.

Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.

Ordered that the application is denied.

The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v Barnes, 463 US 745 [1983]; People v Stultz, 2 NY3d 277 [2004]). Eng, P.J., Skelos, Dickerson and Sgroi, JJ., concur.

Ordered that the sentence is affirmed.

The defendant‘s valid waiver of her right to appeal forecloses review of her claim that her sentence was excessive (see People v Cedeno, 107 AD3d 734 [2013]). Eng, P.J., Angiolillo, Balkin and Hall, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ozzi, J.), rendered May 17, 2011, convicting him of obstructing governmental administration in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.

The defendant contends that the verdict of guilt was against the weight of the evidence. Upon the exercise of our factual review power (see CPL 470.15 [5]), we conclude that the verdict of guilt on the crime of obstructing governmental administration in the second degree was against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). “A person is guilty of obstructing governmental administration when he [or she] intentionally . . . prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference” (Penal Law § 195.05). Thus, a defendant may not be convicted of obstructing governmental administration unless it is established that the police were engaged in authorized conduct (see People v Lupinacci, 191 AD2d 589 [1993]). As determined by the Supreme Court, the initial chase of the defendant by the police was not supported by reasonable suspicion (see People v Lupinacci, 191 AD2d at 589). Further, in light of the defendant‘s acquittal by the jury on the charges of criminal possession of a weapon in the second degree and criminal possession of a weapon in the fourth degree, which we may consider in conducting a weight of the evidence review (see People v Rayam, 94 NY2d 557, 563 n [2000]; People v Otway, 71 AD3d 1052, 1054 [2010]; People v Lindsey, 52 AD3d 527, 530 [2008]), the evidence, when properly weighed, did not prove, beyond a reasonable doubt, that the officer was performing an official function authorized by law when he tried to disarm the defendant following the chase (see People v Perez, 47 AD3d 1192, 1193 [2008]; People v Lupinacci, 191 AD2d at 589; Matter of Verna C., 143 AD2d 94 [1988]). Thus, the record reflects that, when considering whether the People satisfied the “performing an official function” element of the crime of obstructing governmental administration in the second degree, the jury failed to give the weight properly due to its credibility finding that the defendant was not in possession of a weapon (see People v Lindsey, 52 AD3d at 530).

The defendant‘s remaining contentions have been rendered academic in light of our determination.

Accordingly, the judgment must be reversed, the indictment dismissed, and the matter remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.

Skelos, J.P., Angiolillo, Chambers and Hinds-Radix, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Nassau County (Sullivan, J.), rendered January 30, 2012, convicting him of vehicular manslaughter in the second degree, reckless endangerment in the second degree, reckless driving, driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs in violation of Vehicle and Traffic Law § 1192 (4-a), and speeding, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient to establish the defendant‘s guilt of vehicular manslaughter in the second degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as to vehicular manslaughter in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The trial court‘s original charge to the jury with respect to the definition of “cause of death,” which was in accordance with the language contained in the Criminal Jury Instructions, was proper (see CJI2d[NY] Penal Law art 125—Causation; People v Prospect, 50 AD3d 1064, 1064 [2008]; People v Lubrano, 43 AD3d 829, 830 [2007]; People v Pedro, 36 AD3d 832, 833 [2007]; People v McDonald, 283 AD2d 592, 593 [2001]). Contrary to the defendant‘s contention, the court responded meaningfully to the jury‘s inquiry during deliberations regarding the scope of reasonable foreseeability by rereading the original charge (see People v Santi, 3 NY3d 234, 248-249 [2004]; People v Malloy, 55 NY2d 296, 303 [1982], cert denied 459 US 847 [1982]; People v Dawkins, 151 AD2d 495, 497 [1989]; see generally People v Almodovar, 62 NY2d 126, 131 [1984]).

The County Court correctly imposed an interlock ignition requirement as an element of the defendant‘s sentence (see Vehicle and Traffic Law §§ 1192 [4-a]; 1198 [2]). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.

Appeal by the defend-

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Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.

The defendant‘s remaining contentions have been rendered academic in light of our determination.

Accordingly, the judgment must be reversed, the indictment dismissed, and the matter remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.

Skelos, J.P., Angiolillo, Chambers and Hinds-Radix, JJ., concur.

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Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.

The defendant‘s remaining contentions have been rendered academic in light of our determination.

Accordingly, the judgment must be reversed, the indictment dismissed, and the matter remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.

Skelos, J.P., Angiolillo, Chambers and Hinds-Radix, JJ., concur.

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