| People v McCottery |
| 2011 NY Slip Op 09214 [90 AD3d 1323] |
| December 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Brian K.McCottery, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered March 22, 2010, upon a verdict convicting defendant of the crimes ofmenacing a police officer or peace officer (two counts) and resisting arrest.
State Troopers dispatched to defendant's home were informed by his wife that he was insidewith a shotgun. During a standoff, three Troopers, a State Police Sergeant, a State PoliceInvestigator and a Forest Ranger attempted to coax defendant out of a bedroom, from which heperiodically emerged with a 12 gauge shotgun in an irate condition. After he discharged theshotgun inside the bedroom, defendant emerged without the shotgun, briefly struggled withpolice, then was handcuffed and placed under arrest.
Defendant was charged with criminal possession of a weapon in the third degree, five countsof menacing a police officer or peace officer and resisting arrest. One menacing count wasdismissed prior to trial. At the end of trial, the jury convicted defendant of resisting arrest andtwo menacing counts. County Court imposed concurrent prison terms of three years followed bytwo years of postrelease supervision for each menacing count, and one year incarceration forresisting arrest. Defendant appeals.
The police were not required to take defendant into custody pursuant to Mental Hygiene Law§ 9.41, and their failure to do so does not require dismissal of the indictment. The officers[*2]had reasonable cause to believe that defendant had committeda crime, thus permitting them to arrest him (see CPL 140.10 [1]; People v Parker, 84 AD3d 1508,1509 [2011]). Although several officers indicated that defendant seemed suicidal or mentallyunstable, Mental Hygiene Law § 9.41 provides that police "may take into custodyany person who appears to be mentally ill and is conducting himself or herself in a manner whichis likely to result in serious harm to the person or others" (emphasis added). The statute ispermissive, not mandatory; there is no requirement that police detain someone for mental healthreasons, especially when they are aware that the person has committed a crime. The police hereacted within their authority by arresting defendant rather than detaining him for an emergencymental health examination.
The verdict was supported by legally sufficient evidence and was not against the weight ofthe evidence. Defendant contends that the record lacks evidence that he intended to place theinvestigator and a particular trooper in reasonable fear of physical injury or death by displayinghis shotgun (see Penal Law § 120.18), or that he intentionally prevented policeofficers from effecting a lawful arrest (see Penal Law § 205.30). The otherelements are not contested. Intent "may be inferred from a defendant's conduct and from thesurrounding circumstances" (People vBush, 75 AD3d 917, 918 [2010], lv denied 15 NY3d 919 [2010]; People v Foster, 52 AD3d 957,958-959 [2008], lv denied 11 NY3d 788 [2008]; People v Zindle, 48 AD3d 971, 973 [2008], lv denied 10NY3d 846 [2008]). Here, through the testimony of five police officers, the People establishedthat defendant angrily emerged from the bedroom several times, held a shotgun with one hand onthe butt and the other on the barrel, and waved the shotgun around. Although defendant oncepointed the gun underneath his chin and made numerous comments indicating that he intended totake his own life, he also stated that the officers should tell the coroner to bring lots of body bagsand that defendant would kill himself "and anyone that tried to stop him." These statementsevince an intent to harm more than just himself. Defendant also discharged his weapon while inthe bedroom, racked the gun and yelled for the police to get back. The jury found that theinvestigator and trooper who were closest to the bedroom door and most in harm's way werereasonably placed in fear of injury due to defendant's conduct, and we will not disturb thatdetermination.
The officers also testified that when defendant finally emerged from the bedroom without theshotgun, he did not obey orders to get down on the floor, originally had his hands up but loweredthem, pulled away when officers tried to grab his arms, struggled and tucked his arms in whenthe officers attempted to handcuff him. Defense counsel elicited that defendant may not have hadtime to obey the officer's orders, pulled his hands in to protect himself when rushed by theofficers and struggled because he had trouble breathing after being tackled. Given the differingversions presented by this testimony, we will not disturb the jury's determination that defendantintended to prevent his lawful arrest. Defendant's remaining arguments concerning the weight ofthe evidence are merely attacks on the police officers' credibility or inconsistencies in theirtestimony and statements. Giving deference to the jury's findings on those matters, the verdictwas not against the weight of the evidence (see People v Shaver, 86 AD3d 800, 801 [2011]).
County Court did not err by permitting witnesses to rack the shotgun in the presence of thejury. This evidence was relevant to and probative of whether defendant chambered another roundafter the weapon had been discharged as opposed to simply ejecting the spent cartridge.Additionally, this sound was relevant to whether the officers were placed in reasonable fear, andwhether defendant intended that result, when they heard the sound of the shotgun being racked.Therefore, the court did not abuse its discretion in determining that the probative value of these[*3]demonstrations outweighed the prejudice to defendant(see People v Brower, 285 AD2d 609, 610 [2001], lv denied 96 NY2d 938[2001]).
County Court did not err in permitting the officers to testify as to statements made bydefendant's wife. Those statements were not hearsay because they were not offered for their truthbut were admitted to show the effect on the hearers, namely how the police responded to thesituation and why they took certain actions (see People v Abare, 86 AD3d 803, 805 [2011]; People v Johnson, 79 AD3d 1264,1266-1267 [2010], lv denied 16 NY3d 832 [2011]). The court provided appropriatelimiting instructions to ensure that the jury used the statements only for that purpose andinformed the jury that the statements were not admitted for their truth (see People v Gregory, 78 AD3d1246, 1246 [2010], lv denied 16 NY3d 831 [2011]).
County Court did not abuse its discretion in denying defendant's request for missing witnesscharges. The preconditions to such a charge are that the witness must possess knowledge that ismaterial to some issue in the trial, "the witness must be expected to give noncumulativetestimony favorable to the party against whom the charge is sought," and "the witness must beavailable to that party" (People v Savinon, 100 NY2d 192, 197 [2003]; see People v Onyia, 70 AD3d1202, 1204 [2010]). The People concede that the witnesses at issue had material knowledgeand were available, leaving only the second precondition in contention. The Forest Ranger wasthe last law enforcement officer to arrive on the scene and was outside of the house for most ofthe incident. Although he participated in the arrest and helped remove defendant from the house,his testimony would have been cumulative to that of the other officers. A neighbor who tried tocoax defendant from the bedroom was only present for a short time and the officers testifiedabout her participation, rendering her testimony cumulative as well. Defendant's wife also spokewith defendant for a minute during the standoff, but officers relayed the results of that failedeffort. Defendant objected to the officers' testimony about his wife's statements concerning theevents that led to the standoff, but this background information was not directly related to thecharged crimes and, as noted above, was not hearsay. Because all of this information was alreadyelicited through the testimony of numerous witnesses, and the three witnesses would haveprovided cumulative testimony, the court did not abuse its discretion in denying missing witnesscharges (see People v Lemke, 58 AD3d 1078, 1079 [2009]; People v Pereau, 45 AD3d 978,981 [2007], lv denied 9 NY3d 1037 [2008]).
By failing to object before the jury was discharged, defendant failed to preserve his argumentthat the verdict is repugnant (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Pearson, 69 AD3d 1226,1227 [2010], lv denied 15 NY3d 755 [2010]). Defendant's remaining arguments havebeen reviewed and are without merit.
Peters, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.