| People v Emburey |
| 2009 NY Slip Op 03533 [61 AD3d 990] |
| April 28, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v William Emburey, Respondent. |
—[*1] John Ray, Miller Place, N.Y. (Robert R. Meguin of counsel), for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the CountyCourt, Suffolk County (Kahn, J.), dated November 14, 2007, as, upon reargument, adhered to itsoriginal determination in an order dated August 20, 2007, granting that branch of the defendant'spretrial omnibus motion which was to dismiss the 4th, 5th, 16th, 17th, and 18th counts of theindictment insofar as charged against him on the ground that the evidence presented to the grandjury was legally insufficient.
Ordered that the order dated November 14, 2007, is modified, on the law, by deleting theprovision thereof adhering to so much of the original determination in the order dated August 20,2007, as granted that branch of the defendant's pretrial omnibus motion which was to dismiss the4th, 5th, 17th, and 18th counts of the indictment insofar as charged against him, and substitutingtherefor a provision upon reargument vacating that portion of the original determination anddenying that branch of the defendant's pretrial omnibus motion; as so modified, the order datedNovember 14, 2007, is affirmed insofar as appealed from, and the 4th, 5th, 17th, and 18th countsof the indictment insofar as charged against the defendant are reinstated.
The evidence presented to the grand jury was legally sufficient to establish that thedefendant evinced a depraved indifference to human life and recklessly engaged in conductwhich created a grave risk of death to another person (see Penal Law §§120.25, 15.10; People v Galatro, 84 NY2d 160 [1994]; People v Woodruff, 4 AD3d 770[2004]; People v Miranda, 204 AD2d 575 [1994]). Additionally, there was sufficientevidence [*2]to corroborate the incriminating testimony of thedefendant's accomplice (see People v Burgin, 40 NY2d 953, 954 [1976]; People vWeeks, 176 AD2d 836 [1991]; People v Higgins, 170 AD2d 621 [1991]; Peoplev Singleton, 144 AD2d 504 [1988]). Therefore, the Supreme Court erred in adhering to itsoriginal determination insofar as it dismissed the 4th count of the indictment charging thedefendant with reckless endangerment in the first degree. The County Court also erred indismissing the 5th count of the indictment charging the defendant with hindering prosecution inthe second degree (see People vWilliams, 20 AD3d 72 [2005]; People v Barreiro, 149 AD2d 600 [1989]).Further, the County Court erred in dismissing the 17th and 18th counts of the indictment, both ofwhich charged the defendant with official misconduct (see Penal Law § 195.00[2]).
However, the County Court properly adhered to its original determination granting thatbranch of the defendant's motion which was to dismiss the16th count of the indictment chargingconspiracy in the fifth degree. There was no evidence that the defendant conspired with otherpolice officers in making the decision to withhold from paramedics the information that theinjured individual in the police headquarters had suffered blunt force trauma to the head andabdomen while in police custody (see People v Giordano, 211 AD2d 814, 816-817[1995]). Spolzino, J.P., Florio, Miller and Eng, JJ., concur.