| People v Dorsey |
| 2017 NY Slip Op 05126 [151 AD3d 1391] |
| June 22, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Kasaad M.Dorsey, Appellant. |
Sandra M. Colatosti, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered November 14, 2014, upon a verdict convicting defendant of the crime of assault in thesecond degree.
In December 2013, defendant was indicted and charged with one count of assault in thesecond degree. The charge stemmed from events that unfolded during a "rip operation" thatoccurred in the parking lot of a Home Depot store in the City of Albany on the evening ofOctober 1, 2013. Members of the Albany Police Department had arranged for a confidentialinformant to meet defendant, the target of the operation, in the parking lot. Although it wasanticipated that defendant would have drugs on him at this time, the confidential informant hadnot been provided with any money to purchase drugs; rather, the plan was simply to takedefendant into custody based upon certain prior "open felony sales . . . forheroin"—specifically, an observed controlled buy that occurred on September 24, 2013.When defendant arrived and the officers moved in, defendant fled across the parking lot. Duringthe course of the ensuing chase, takedown and attempt to subdue and handcuff defendant, whichdefendant strenuously resisted, one of the detectives involved fractured and dislocated the ringfinger of his right hand.
As part of his omnibus motion, defendant argued that the police lacked probable cause toarrest him on October 1, 2013 based upon the September 24, 2013 drug transaction. CountyCourt rejected defendant's argument, finding that there was probable cause for his arrest, anddefendant thereafter stipulated for purposes of trial that the police were carrying out a lawful[*2]purpose on the night in question—one of the elementsof assault in the second degree (see Penal Law § 120.05 [3]). At theconclusion of the jury trial that followed, defendant was convicted as charged and thereafter wassentenced—as a predicate nonviolent felony offender—to a prison term of6
We affirm. Initially, we reject defendant's pro se contention that he was denied his right toappear before the grand jury. After defendant's then assigned counsel unsuccessfully soughtdismissal of the indictment upon the ground that defendant was not afforded notice of and areasonable time within which to exercise his right to appear before the grand jury (seeCPL 190.50 [5] [a]), defendant filed a pro se motion seeking reconsideration of County Court'sruling on this point. In conjunction therewith, defendant submitted an affidavit wherein heconceded "that on December 2, 2013, [the] Assistant District Attorney . . . faxed anotice of presentment to defendant's prior counsel . . . indicating that the case wouldbe presented to the [g]rand [j]ury on December 3, 2013." As such, we are satisfied that defendantwas provided with reasonable notice of the impending grand jury proceeding (compare People v Wilkerson, 140AD3d 1297, 1299-1300 [2016], lv denied 28 NY3d 938 [2016], with People v Hymes, 122 AD3d1440, 1441 [2014]). Further, contrary to defendant's assertion, counsel's alleged failure toapprise defendant of his right to testify before the grand jury does not constitute ineffectiveassistance of counsel (see People vZayas-Torres, 143 AD3d 1176, 1177-1178 [2016]; People v Milton, 143 AD3d 918, 918 [2016]; cf. People vWilkerson, 140 AD3d at 1301).
Nor are we persuaded that the police lacked probable cause for defendant's arrest on October1, 2013, which was predicated upon a controlled buy that occurred on September 24, 2013."Probable cause does not require proof sufficient to warrant a conviction beyond a reasonabledoubt but merely information sufficient to support a reasonable belief than an offense has beencommitted by the person arrested" (People v Garcia, 131 AD3d 732, 734 [2015] [internal quotationmarks, ellipsis and citations omitted], lv denied 27 NY3d 997 [2016]; see People v Cruz, 131 AD3d 724,726 [2015], lv denied 26 NY3d 1087 [2015]). Here, the injured detective testified at thesuppression hearing that defendant was an observed participant in a controlled buy involving aconfidential informant that took place on September 24, 2013. Prior to meeting with defendant,the informant "was searched with negative results for contraband and buy money." Following the"observed sale," the informant returned with "a quantity of heroin on him." Such testimony, inour view, demonstrated that the police possessed "knowledge of facts and circumstancessufficient to support a reasonable belief that an offense ha[d] been . . . committed"(People v Cruz, 131 AD3d at 726 [internal quotation marks and citations omitted]).Accordingly, we are satisfied that defendant's arrest was supported by probable cause.
As for defendant's claim that the verdict is not supported by legally sufficient evidence and/oris against the weight of the evidence, again, we disagree. Insofar as is relevant here, "[a] person isguilty of assault in the second degree when . . . [w]ith intent to prevent a. . . police officer . . . from performing a lawful duty . . .he or she causes physical injury to such . . . police officer" (Penal Law§ 120.05 [3]; accordPeople v Tucker, 141 AD3d 748, 749-750 [2016]; see People v Caraballo, 136 AD3d 937, 940 [2016], lvdenied 27 NY3d 1067 [2016]). Physical injury, in turn, "means impairment of physicalcondition or substantial pain" (Penal Law § 10.00 [9]). "To sustain [such] aconviction . . . , the People must establish that the injured police officer [*3]was engaged in a lawful duty at the time of the assault by thedefendant" (People v Tucker, 141 AD3d at 750 [internal quotation marks and citationsomitted]). As this Court recently reiterated, "this crime is one of strict liability as far as the injuryis concerned and even if the defendant caused the injury to the officer accidentally, he or she isguilty . . . if the accident happened while he or she intentionally acted to prevent theperformance of the officer's duty" (People v Iovino, 149 AD3d 1350, 1352 [2017] [internal quotationmarks, brackets, ellipsis and citations omitted]; see People v Campbell, 72 NY2d 602,604 [1988]). Finally, "where a defendant's flight naturally induces a police officer to engage inpursuit, and the officer is . . . injured in the course of that pursuit, the causationelement of the crime will be satisfied" (People v Iovino, 149 AD3d at 1352).
The testimony at trial revealed that, when members of the takedown team moved in andidentified themselves as the police, defendant ran across the Home Depot parking lot in a zigzagfashion in an effort to evade capture—all the while ignoring repeated instructions to stopand get on the ground. During the course of the foot pursuit, defendant ran—fullspeed—into a parked vehicle operated by one of the detectives, bouncing back off of thevehicle, striking another detective and causing the two of them to fall to the ground. Defendantthen continued to struggle and ignored repeated orders to stop, prompting the use of physicalforce in order to subdue him. When one of the detectives attempted to handcuff defendant, henoticed that the first knuckle of his right ring finger was bent at a 90 degree angle toward hispinky finger and that he was unable to close his hand. After asking for assistance in handcuffingdefendant, the detective, who "was in an incredible amount of pain," "snapped [his] finger backinto place." Upon seeking medical treatment for his injury, the detective discovered that he hadfractured and dislocated his finger and ruptured a tendon.
As noted previously, defendant stipulated for purposes of trial that those police officerspresent in the Home Depot parking lot on the night in question were lawfully performing theirduties during their pursuit and apprehension of him. Additionally, there is no question that thedetective's testimony as to the nature and extent of his injury, which was sufficiently painful tocause him to feel "like [he] was going to pass out or throw up," established the physical injuryelement of the charged crime. Finally, the jury could reasonably conclude—based upondefendant's flight on foot, his subsequent refusal to obey orders to stop and his continued strugglewith officers once he was on the ground—that defendant intended to prevent the officersfrom effectuating a lawful arrest. Based upon such evidence, we find that the verdict is supportedby legally sufficient evidence and, further, is in accord with the weight of the evidence (seeid. at 1351-1353).
To the extent that defendant raises certain issues in his pro se brief with respect to CountyCourt's charge to the jury, suffice it to say that defendant's arguments on this point areunpreserved for appellate review, as defendant neither asked that certain lesser included offensesbe charged nor objected to the court's jury charge as given (see e.g. People v Bost, 139 AD3d 1317, 1321 [2016]). Defendant'sremaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
McCarthy, J.P., Rose, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's subsequentapplication for a stay and/or release on bail pending appeal similarly was denied.