| People v McLean |
| 2015 NY Slip Op 03881 [128 AD3d 1106] |
| May 7, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWendy E. McLean, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Delaware County(Becker, J.), rendered February 19, 2013, upon a verdict convicting defendant of thecrimes of assault in the second degree (two counts), resisting arrest and obstructinggovernmental administration in the second degree, and the violation of disorderlyconduct.
Defendant was charged in a five-count indictment with assault in the second degree(two counts), resisting arrest, obstructing governmental administration in the seconddegree and disorderly conduct. The charges stemmed from an incident that occurred onthe evening of May 20, 2012 in the Village of Walton, Delaware County, at which timevillage police officers Daniel St. Jacques and Jeffrey Clark responded to a 911 call of apossibly intoxicated female wandering down a village street and reaching for passingmotor vehicles. When St. Jacques and Clark arrived at the scene, they observed awoman—later identified as defendant—walking along the double yellowline in the middle of the road and engaging in conversation with the driver of a van.
After speaking with the driver of the van, St. Jacques pulled alongside defendant,who had continued walking down the road, and indicated that he wished to speak withher. Defendant did not comply with St. Jacques's request. Clark then exited the patrolvehicle and asked defendant to walk toward him, at which point defendant informedClark that she did not wish to talk to him and threw a lemon wedge, striking him in theface. In response, Clark advised defendant that she was under arrest for disorderlyconduct. When defendant attempted to walk [*2]away,Clark grabbed her arm, and defendant, in turn, bit Clark's hand. St. Jacques then exitedthe patrol vehicle to assist Clark in subduing defendant, whom both officers described asvery slippery. The officers eventually were able to handcuff defendant, but not before she(1) punched St. Jacques in the face, head butted him and bit his hand, (2) bit Clark on theside of his head (twice) and bit his left inner thigh (resulting in a sizeable bruise), and (3)was tased five times with Clark's stun gun.
Following a jury trial, defendant was convicted as charged. County Court, amongother things, granted defendant a conditional discharge with respect to the disorderlyconduct charge and, as to the balance of the indictment, sentenced defendant to a term ofincarceration of six months followed by five years of probation. Defendant now appeals,contending that the jury's verdict is against the weight of the evidence.
We affirm. "A person is guilty of assault in the second degree when . . .[w]ith intent to prevent a . . . police officer . . . fromperforming a lawful duty . . . he or she causes physical injury to such. . . police officer" (Penal Law § 120.05 [3]; see People v Somerville, 72AD3d 1285, 1287 [2010]),[FN1] and "[a] person is guilty of resistingarrest when he [or she] intentionally prevents or attempts to prevent a police officer. . . from effecting an authorized arrest of himself [or herself] or anotherperson" (Penal Law § 205.30; see People v Lepard, 83 AD3d 1214, 1215 [2011], lvdenied 18 NY3d 925 [2012]). Similarly, "[a] person is guilty of obstructinggovernmental administration [in the second degree] when he [or she] intentionallyobstructs, impairs or perverts the administration of law or other governmental function orprevents or attempts to prevent a public servant from performing an official function, bymeans of intimidation, physical force or interference" (Penal Law § 195.05;see People v Dumay, 23NY3d 518, 524 [2014]). Finally, "[a] person is guilty of disorderly conduct when,with intent to cause public inconvenience, annoyance or alarm, or recklessly creating therisk thereof . . . [h]e [or she] obstructs vehicular or pedestrian traffic" (PenalLaw § 240.20 [5]; see People v Jones, 9 NY3d 259, 262 [2007]; People v Seck, 126 AD3d574 [2015]).[FN2] As to all of these charges, defendant'sintent may be inferred from the surrounding circumstances, including her words orconduct (see People v Pine,126 AD3d 1112, 1114 [2015]; People v McCottery, 90 AD3d 1323, 1324 [2011], lvdenied 19 NY3d 975 [2012]), and the "competing inferences to be drawn regarding. . . defendant's intent, if not unreasonable, are the exclusive domain of thefinders of fact, not to be disturbed by [this Court]" (People v Gordon, 23 NY3d 643, 650 [2014] [internalquotation marks and citation omitted]; accord People v Barboni, 21 NY3d 393, 405 [2013]).
Here, St. Jacques and Clark collectively testified that they first encountereddefendant walking down the centerline of a village street shortly before 10:00 p.m. on thenight in question and engaging a stopped motorist in conversation. When they attemptedto speak with defendant, she refused, walked away and thereafter threw a lemon wedge,striking Clark in the face. Upon being advised that she was under arrest for disorderlyconduct, defendant broke free of Clark's [*3]grasp and bithim on the hand, refused repeated orders to stop struggling and continued to fight bothofficers—quite literally—"tooth and nail" until they finally were able tosubdue her. Notably, defendant does not materially dispute the officers' accounts of heractions; she admits that she "was walking down the center of the street" at night, that a"black vehicle" pulled up next to her, that the occupants—later described aswearing black uniforms—asked to speak with her and directed her to "go to theside of the street," that she refused, that she "released the lemon" when one of theoccupants approached her and that she thereafter struggled with theseindividuals—biting at least one of them. Nor does defendant argue that theofficers lacked probable cause to arrest her, dispute that they were engaged in authorized,lawful and legitimate governmental or law enforcement duties during the course of theirencounter with her, deny that she used physical force in struggling with the officers orcontest that they sustained physical injuries as a result thereof. Rather, defendantcontends that she was suffering from "a serious, delusional, mental impairment" at thetime of her encounter with St. Jacques and Clark, as a result of which she did notrecognize them as police officers. Hence, defendant's argument continues, she lacked therequisite intent necessary in order to be convicted of the charged crimes. Wedisagree.
Although defendant testified at trial that neither St. Jacques nor Clark identifiedthemselves as police officers, she acknowledged that the occupants of the vehicle thatapproached her were in uniform, and one cannot use physical force to resist arrest "whenit would reasonably appear" that the individual attempting to effectuate the arrest is apolice officer (Penal Law § 35.27). Further, with respect to defendant'sasserted mental impairment,[FN3] we note that defendant underwent apretrial CPL article 730 examination, at the conclusion of which both a psychiatrist and apsychologist found defendant to be competent to stand trial. Defendant neither contestedthis finding, requested a hearing on this issue nor "assert[ed] the affirmative defense of amental disease or defect at trial" (People v Foster, 52 AD3d 957, 959 n [2008], lvdenied 11 NY3d 788 [2008]) and, based upon defendant's actions on the night inquestion and the reasonable inferences that may be drawn therefrom, we are satisfied thatdefendant possessed the requisite intent to commit the charged crimes. Accordingly,although a different verdict would not have been unreasonable, we find defendant'sconvictions of assault in the second degree (see [*4]People v Dancy, 87AD3d 759, 760-761 [2011]; cf. People v Somerville, 72 AD3d at1286-1287), resisting arrest (seePeople v Sibblies, 98 AD3d 458, 460-461 [2012], revd on other grounds22 NY3d 1174 [2014]; People v Lepard, 83 AD3d at 1215-1216), obstruction ofgovernmental administration in the second degree (see People v Sibblies, 98AD3d at 460-461; People vBaltes, 75 AD3d 656, 659 [2010], lv denied 15 NY3d 918 [2010]) anddisorderly conduct (see People vMoye, 90 AD3d 472, 472-473 [2011], lv denied 18 NY3d 926 [2012];People v Richards, 17AD3d 489, 490 [2005], lv denied 5 NY3d 768 [2005]) to be in accord withthe weight of the evidence, and we decline defendant's invitation to set aside the jury'sverdict in the interest of justice.
Peters, P.J., Rose and Lynch, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Intent to cause physicalinjury to a police officer is not an element of assault in the second degree under PenalLaw § 120.05 (3) (see People v Rojas, 97 NY2d 32, 39-40 [2001]).
Footnote 2:Here, with respect to thecharge of disorderly conduct, both theories of liability were submitted to the jury, and thejury thereafter found defendant guilty upon the theory that she recklessly obstructedvehicular traffic.
Footnote 3:Defendant testified attrial that, prior to her encounter with St. Jacques and Clark on the evening in question,she had engaged in a conversation with a man (during daylight hours) who purportedlytold defendant that he and his friends were vampires and that they would be returninglater that evening to attack defendant and her family. Upon appeal, defendant now arguesthat she believed that St. Jacques and Clark "were not police officers but, instead,terrifying 'vampires' " who, in turn, were related to the individual whom sheencountered earlier in the day. The flaw in defendant's argument on this point is twofold.First, although defendant indeed testified that she thought that St. Jacques and Clarkwere "related" to the unidentified man who purportedly had threatened her, defendantnever testified that she believed that St. Jacques and Clark were in fact vampires.Additionally, as to the man (and his friends) in question, defendant acknowledged thatshe "didn't think that they were serious [about being vampires]" and that she "didn'tactually think that they would come [back] and attack [her and her family]."