THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v KALFORD SOMERVILLE, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
April 15, 2010
72 A.D.3d 1285 | 900 N.Y.S.2d 468
Defendant appeals from his convictions оf assault in the second degree and resisting arrest stemming from an altercation with police on the night of June 9, 2008 outside his girlfriend‘s apartment on Hazel Street in the Town of Southport, Chemung County. A prolonged argument between defendant
At approximately 11:30 p.m., the third 911 call reported that the situation had escalated and a sword or edged weapon was involved. State Trooper Jason Wood and Deputy Sheriff Robert Wheeler responded to the scene where Coley, some of her family membеrs and defendant were outside the apartment. According to the officers’ testimony at trial, when they arrived defendant ran from the front porch and down the driveway. Wheelеr ran toward defendant, yelling at him that he was under arrest, to show his hands and get down on the ground. Instead, defendant grabbed Wheeler with both hands, forced him to the ground, and landed on top of him, injuring Wheeler‘s arm. During the ensuing struggle, Wheeler accidently “tased” Wood, who was trying to pull defendant off Wheeler, but then Wheeler successfully used his taser to stun and subdue defendant.
Defendant was indicted on four counts, including assault in the second degree (against Wheeler), resisting arrest, assault in the third degree (based on the allegation that he had knockеd Coley‘s elderly mother to her knees, resulting in injury) and menacing in the second degree (based on allegations that he chased Coley‘s daughter with a bayonet). After a jury trial, defеndant was convicted of the two counts involving the altercation with police, but acquitted of the other two. He was sentenced to five years in prison with three years оf postrelease supervision on the assault charge and one year of incarceration on the resisting arrest charge, to run concurrently with the other sentenсe. Based on the convictions, County Court also issued orders of protection pursuant to
First, we reject defendant‘s argument that the evidence at trial was legally insufficient to support his convictions. In reviewing the legal suffiсiency of a verdict, we must view the evidence in the light most favorable to the People (see People v Roberts, 63 AD3d 1294, 1296 [2009]), and “‘determine whether there is any valid line of reasoning and permissible infеrences which could lead a rational person to the conclusion reached by the jury . . . and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged‘” (People v Scanlon, 52 AD3d 1035, 1038 [2008], lv denied 11 NY3d 741 [2008], quoting People v Bleakley, 69 NY2d 490, 495 [1987]).
Next, we reject defendant‘s assertion that his due process rights were violated because two of the jurors visited the scene оf the alleged incident on their own time. No record evidence supports this contention. County Court permitted one juror to pick up her granddaughter from a babysitter who lived on Hazel Street and another juror, who actually lived on Hazel Street, to return home. In both instances, the jurors were instructed, and agreed, not to drive by or visit the scene (sеe People v Grey, 150 AD2d 823, 823-824 [1989], lv denied 74 NY2d 810 [1989]; cf. People v De Lucia, 20 NY2d 275, 279-280 [1967]).
Defendant also asserts that errors in his presentence report deprived him of due process. Though unpreserved, we must address this issue in light of defendant‘s contention that, based in part on his attorney‘s failure to object to the presentence report, defendant was deprived of the effective assistance of counsel. Specifically, defendant focuses on the fact that the report states that he pleaded guilty in this case when, in fact, he was convicted after a trial and that the report erroneously marks him as a “non-veteran.” We find that these minor errors did not operate to prejudice defendant.
Given that the first page of the presentenсe report accurately states that defendant was convicted after a verdict, rather than a plea, and that the same judge who sentenced defendant рresided over his trial, we discern no basis for confusion. Likewise, because the presentence report describes defendant‘s
Likewise, the other alleged inadequacies in defense counsel‘s performance do not rise to the lеvel of ineffective assistance of counsel. “To prevail on his claim that he was denied effective assistance of counsel, defendant must demonstrate that his аttorney failed to provide meaningful representation” (People v Caban, 5 NY3d 143, 152 [2005] [citations omitted]; see People v Lee, 66 AD3d 1116, 1120 [2009]). Here, a review of the record reveals that defense counsel provided meaningful representation. She pursued a cogent defense theory, effectively cross-examined witnesses and ultimately achieved an acquittal on two of the four counts charged in the indictment.
We do find merit, however, in defendant‘s objection to one of the orders of protection issued by County Court. The court had the authority, based on defendant‘s convictions, to enter an order of protection in favor of “the victim or victims, or of any witness designated by the court, of such offense” (
Finally, we are unpersuaded that defendant‘s sentence was vindictive or harsh and excessive. County Court specifically explained to defendant that he was imposing a sentence much heavier than offered during plea negotiations nоt as punishment for going to trial, but because defendant‘s extensive criminal history revealed that his prior, lighter sentences had not made an impact and that he refused to address his problem with alcohol. Indeed, the sentences imposed were within the
We have considered defendant‘s remaining contentions and find them to be without merit.
Rose, Kavanagh, Stein and Egan Jr., JJ., concur.
Ordered that the judgment is modified, on the law, by vacating the order of protection in favor of William Baldwin, and, as so modified, affirmed.