| People v Baltes |
| 2010 NY Slip Op 05807 [75 AD3d 656] |
| July 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GeorgeBaltes, Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh, for respondent.
Stein, J. Appeal from a judgment of the County Court of Clinton County (Ryan, J.), renderedFebruary 25, 2008, upon a verdict convicting defendant of the crimes of driving whileintoxicated, obstructing governmental administration in the second degree and resisting arrest,and the traffic infraction of unsafe lane movement.
On January 13, 2007, defendant and his friend Darren Barcomb were involved in a one-caraccident in a vehicle registered to Barcomb. Upon arriving at the scene, State Trooper JoshuaJenkins observed a vehicle nose-first in a ditch; no one was in the vehicle. As Barcombapproached Jenkins, he advised Jenkins that he had slid off the road. Jenkins questionedBarcomb because Jenkins smelled the odor of alcohol emanating from him, and Barcombadmitted that he had consumed a "couple beers."
Believing Barcomb to have been the driver of the vehicle, Jenkins began administering fieldsobriety tests, but was repeatedly interrupted by defendant, who came increasingly closer toJenkins and Barcomb and continued to interfere, despite admonitions to remain calm and quiet.Meanwhile, State Trooper Scott Santor arrived on the scene to assist Jenkins and, after learningof defendant's conduct, first verbally instructed him to move away from Barcomb and Jenkinsand, when that failed, attempted to physically remove him from the area. When defendantallegedly struck Santor in an effort to resist, he was placed under arrest, handcuffed—afterresisting the officers' efforts to place handcuffs on him by struggling and tucking his arms [*2]underneath himself while lying on his stomach—andultimately taken to the State Police barracks.
In the interim, Jenkins completed the field sobriety tests on Barcomb and, determiningBarcomb to be under the influence of alcohol, arrested him for driving while intoxicated(hereinafter DWI), at which point Barcomb stated that he was not the driver of the vehicle.Nevertheless, Barcomb refused to identify the actual driver and was charged with DWI. Twomonths later, defendant gave a sworn written statement to State Trooper Sean Finn indicatingthat it was he, and not Barcomb, who had been driving Barcomb's vehicle on the date of theaccident. Accordingly, defendant was arrested on the additional charge of DWI and the chargeagainst Barcomb was dismissed. Thereafter, a grand jury handed up a five-count indictmentagainst defendant for the events occurring on January 13, 2007. Following a jury trial, defendantwas convicted of DWI, unsafe lane movement, obstructing governmental administration in thesecond degree and resisting arrest.[FN1]Defendant now appeals.
Defendant contends that none of the convictions were supported by legally sufficientevidence and, alternatively, that they were all against the weight of the evidence. In determininglegal sufficiency, we view the evidence in the light most favorable to the People (see Peoplev Cabey, 85 NY2d 417, 420 [1995]; People v Roberts, 63 AD3d 1294, 1296 [2009]) and give them thebenefit of every favorable inference (see People v Bleakley, 69 NY2d 490, 495 [1987];People v Scanlon, 52 AD3d1035, 1038 [2008], lv denied 11 NY3d 741 [2008]). We "will not disturb the verdictif the evidence demonstrates a valid line of reasoning and permissible inferences that could leada rational person to the conclusion reached by the jury" (People v Maricevic, 52 AD3d 1043, 1044 [2008], lvdenied 11 NY3d 790 [2008]; see People v Bleakley, 69 NY2d at 495; People v Owens, 45 AD3d 1058,1059 [2007]). When we conduct a weight of the evidence review, if we are satisfied that adifferent verdict would not have been unreasonable, we independently assess the " 'relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony' " (People v Bleakley, 69 NY2d at 495, quotingPeople ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]), viewing the evidence in aneutral light and according deference to the jury's credibility determinations (see People vBleakley, 69 NY2d at 495; People v Owens, 45 AD3d at 1059; People vDavis, 260 AD2d 726, 729 [1999], lv denied 93 NY2d 968 [1999]).
With respect to the convictions of DWI and unsafe lane movement, defendant contends thatthere was insufficient evidence that he was the driver of Barcomb's vehicle, as his admission tothat effect was not sufficiently corroborated (see CPL 60.50). "[CPL 60.50] does notrequire corroboration of confessions or admissions in every detail, but only 'some proof, ofwhatever weight,' that the offense charged has in fact been committed by someone" (People vBooden, 69 NY2d 185, 187 [1987], quoting People v Daniels, 37 NY2d 624, 629[1975]). "The necessary additional evidence may be found in the presence of defendant at thescene of the crime, his guilty appearance afterward, or other circumstances supporting aninference of guilt" (People v Booden, 69 NY2d at 187 [citations omitted]).[*3]
Here, we find that defendant's admission that he was thedriver was sufficiently corroborated by his presence at the scene with only one otherindividual—Barcomb, who testified that he, Barcomb, was not the driver—as wellas Jenkins' testimony that he heard Barcomb state, after being placed under arrest, that Barcombwas not the driver. Inasmuch as the other elements of the charged crimes of DWI and unsafe lanemovement are not being challenged here, we conclude that defendant's convictions of suchcrimes were based upon legally sufficient evidence and were not contrary to the weight of theevidence.
Turning to the charge of obstructing governmental administration in the second degree, "[a]person is guilty of [such crime] when he [or she] intentionally . . . prevents orattempts to prevent a public servant from performing an official function, by means ofintimidation, physical force or interference" (Penal Law § 195.05). Contrary to defendant'scontention, conduct may be inappropriate or disruptive within the ambit of Penal Law §195.05 even when no physical force is involved (see People v Romeo, 9 AD3d 744, 745 [2004]; Willinger vCity of New Rochelle, 212 AD2d 526, 527 [1995]; People v Tarver, 188 AD2d 938,938 [1992], lv denied 81 NY2d 893 [1993]).
Here, witness testimony that defendant was belligerent, uncooperative and refused a directrequest that he either remain calm and quiet or leave the area while Jenkins attempted to performfield sobriety tests on Barcomb was sufficient to establish the crime of obstructing governmentaladministration in the second degree (see Matter of Davan L., 91 NY2d 88, 91-92 [1997];People v Nesbitt, 69 AD3d1109, 1112 [2010], lv denied 14 NY3d 843 [2010]; People v Romeo, 9AD3d at 745). In addition, giving due deference to the jury's credibility determinations, wecannot say that the verdict was against the weight of the evidence (see People v Owens,45 AD3d at 1059). In view of this conclusion, we find no merit to defendant's contention that hisconviction for resisting arrest was legally insufficient because the police lacked probable causeto effect the arrest (see Penal Law § 205.30; People v Peacock, 68 NY2d675, 676-677 [1986]; People v Rosa, 277 AD2d 506, 507 [2000], lvs denied 95NY2d 968 [2000], 96 NY2d 867 [2001]). Furthermore, given the testimony regardingdefendant's actions when the officers attempted to place him in handcuffs, such conviction is notagainst the weight of the evidence.
We agree, however, with defendant's contention that County Court erred when it refused togrant his motion to dismiss the counts of the indictment charging obstructing governmentaladministration in the second degree and resisting arrest based on the insufficiency of the People'sopening statement at trial.[FN2]Pursuant to CPL 260.30 (3), the People are required to make an opening statement to the jury,which "should set forth the nature of the charge[s] against the accused and state briefly the facts[the People] expect[ ] to prove, along with the evidence [the People] plan[ ] to introduce insupport of the same" (People v Kurtz, 51 NY2d 380, 384 [1980], cert denied 451US 911 [1981]; see People vHazen, 20 AD3d 586, 588 [2005], lv denied 5 NY3d 806 [2005]). Theinformation must be sufficient to allow the jury to intelligently [*4]understand the nature of the case (see People v Blanchard, 63 AD3d1291, 1292 [2009], lv denied 13 NY3d 794 [2009]; People v Ward, 42 AD3d 579,581 [2007], lv denied 9 NY3d 883 [2007]; People v Culver, 192 AD2d 10, 15[1993], lv denied 82 NY2d 716 [1993]; Matter of Lacerva v Dwyer, 177 AD2d747, 748-749 [1991]).
Here, while sufficient information was presented in the People's opening statement to permitthe jury to intelligently understand the nature of the DWI charge against defendant, the onlyarguable reference to the charges of obstructing governmental administration and resisting arrestwas a fleeting remark about defendant's "belligerent and disrespectful" behavior. Taken as awhole, the People's opening statement failed to sufficiently inform the jury so that it couldintelligently understand the nature of those charges. Defendant's convictions on counts four andfive of the indictment must, therefore, be reversed (see People v Kurtz, 51 NY2d at 387;Matter of Lacerva v Dwyer, 177 AD2d at 748-749).
Defendant's argument that certain comments made by the People in their summationdeprived him of a fair trial is not preserved for our review inasmuch as no objection was madethereto at the time of trial (see CPL 470.05; People v Hoke, 276 AD2d 903, 905[2000], lv denied 96 NY2d 801 [2001]; People v Spencer, 272 AD2d 682, 685[2000], lv denied 95 NY2d 858 [2000]), and we decline to exercise our jurisdiction totake corrective action in the interest of justice. Furthermore, we are not persuaded by defendant'sargument that counsel's failure to object to such comments deprived him of the effectiveassistance of counsel. Our review of the record reveals that, considering the totality of thecircumstances, defendant received meaningful representation (see People v Jackson, 70NY2d 768, 769 [1987]; People vJackson, 48 AD3d 891, 893 [2008], lv denied 10 NY3d 841 [2008]).
Defendant's remaining contentions have been considered and are unavailing.
Cardona, P.J., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing so much thereof as convicted defendant of obstruction ofgovernmental administration in the second degree and resisting arrest under counts four and fiveof the indictment and vacating the sentences imposed thereon; matter remitted to the CountyCourt of Clinton County for a new trial on said counts; and, as so modified, affirmed.
Footnote 1: Count three of theindictment—operating in violation of restrictions—was dismissed following theclose of the People's proof at trial.
Footnote 2: We note that County Courtshould have ruled on this motion before proceeding with defendant's opening statements, so as toallow the People to supplement their statement if the court determined it to be inadequate.However, in view of the court's determination to deny the motion, the failure to follow thisprocedure was harmless.