| People v Wheatley |
| 2008 NY Slip Op 07801 [55 AD3d 947] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gloria Wheatley,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Czajka, J.), rendered May 19, 2006 inAlbany County, upon a verdict convicting defendant of two counts of the crime of assault in the thirddegree.
Two police officers responded to an early morning complaint of a party and loud music at the homeof defendant. While the officers were talking with defendant and another resident on the enclosed porchoutside the front door of the house, an altercation arose, and defendant grabbed an officer'spepper-spray device and sprayed the officers' faces. After pushing the officers from the porch,defendant and the other resident retreated into the house. The officers then entered the house andarrested the two of them. Following a joint trial, defendant was convicted of two counts of assault in thethird degree and sentenced to two concurrent one-year jail terms, prompting this appeal.
As a threshold matter, defendant's challenge to the validity of the indictment against her based uponthe absence of required signatures is unpreserved because she never raised this issue in a motion todismiss the indictment (see People vStriplin, 48 AD3d 878, 879 [2008], lv denied 10 NY3d 871 [2008]; People v Brown, 17 AD3d 869, 870[2005]). In any event, our inspection of the original indictment reveals that its backer bears thesignatures of the grand jury foreperson and the presiding Assistant District Attorney, thus satisfying therequirements of CPL 200.50 (8) [*2]and (9) (see People vStriplin, 48 AD3d at 879).
Defendant next contends that, contrary to a pretrial ruling by County Court (Herrick, J.), the policeviolated Payton v New York (445 US 573 [1980]) when they entered her home to make awarrantless arrest in the absence of exigent circumstances. The evidence established, however, that thearrest was for conduct witnessed by the officers outside her home and occurred inside her home onlybecause that was where she retreated after assaulting the officers. A defendant "may not thwart anotherwise proper arrest set in motion in a public place by escaping into his [or her] residence"(People v Nieves, 183 AD2d 854, 856 [1992], lv denied 80 NY2d 907 [1992];see United States v Santana, 427 US 38, 43 [1976]; People v Glia, 226 AD2d 66, 71[1996], appeal dismissed 91 NY2d 846 [1997]; People v Jacobo, 208 AD2d 432,432 [1994], lv denied 84 NY2d 1012 [1994]).
Defendant further claims that Supreme Court (Czajka, J.) denied her a fair trial by precluding hercounsel, during summation, from asserting justification as a defense and arguing that the police officershad lacked a lawful duty in being present at her home, an element of assault in the second degree(see Penal Law § 120.05 [3]). This contention is without merit because the recordreveals that, during the summation, Supreme Court merely sustained an objection to defense counsel'sstatement that the officers had entered onto defendant's property "without anybody's permission" anddid not affirmatively prevent defense counsel from arguing justification. In addition, the issue of whetherthe police officers were performing a lawful duty was only relevant to the charges of assault in thesecond degree, charges of which defendant was acquitted.
We also find no merit in defendant's contention that Supreme Court erroneously instructed the jurythat a unanimous verdict was not required. The only mention of a less than unanimous determinationwas in the court's response to the jury's request for the definition of "acting in con[cert]." SupremeCourt read the Criminal Jury Instructions relating to accessorial liability (see CJI2d[NY]Accessorial Liability), which includes advice that the jury need not be unanimous in deciding whether adefendant personally committed the charged crime or whether he or she acted in concert with anotherperson. This was an accurate description of the applicable law (see People v Mateo, 2 NY3d383, 407-409 [2004], cert denied 542 US 946 [2004]), and did not imply that the jury'sverdict as to defendant's guilt could be less than unanimous.
Next, we find unpreserved defendant's arguments that Supreme Court erred in failing to properlycharge the jury as to the legal principles applicable in criminal cases and in failing to give a justificationcharge based upon her use of force in defense of herself and her home (see People v O'Hara,96 NY2d 378, 383-384 [2001]; People vGilbo, 52 AD3d 952, 954 [2008]; People v Kuykendall, 43 AD3d 493, 494-495 [2007], lv denied9 NY3d 1007 [2007]). In any event, inasmuch as the police officers were attempting to arrest the otherresident for a violation committed in their presence on the porch when defendant intervened, no view ofthe evidence would lead to the conclusion that she was justified in attacking the police officers(see Penal Law § 35.27; People v Grady, 40 AD3d 1368, 1371 [2007], lv denied 9NY3d 923 [2007]).
Finally, given defendant's reckless conduct, the injuries she caused, her lack of remorse at the timeof sentencing and her persistence that she was the true victim of the incident, we find no basis to disturbher sentence (see People v Gorham, 17AD3d 858, 861 [2005]; People v Gray, 189 AD2d 922, 923 [1993], lv denied81 NY2d 886 [1993]; People v O'Neil, 116 AD2d 853, 854[*3][1986]).
Cardona, P.J., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted to the Supreme Court for further proceedings pursuant to CPL 460.50(5).