| People v Cipollina |
| 2012 NY Slip Op 03334 [94 AD3d 1549] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JohnCipollina, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered April 14, 2010. The judgment convicted defendant, upon a jury verdict, of recklessendangerment in the second degree, assault in the second degree, unlawful fleeing a policeofficer in a motor vehicle in the third degree, reckless driving, speeding, failure to obey red light,failure to obey no passing zone and driving without a safety belt.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, reckless endangerment in the second degree (Penal Law § 120.20), assault in thesecond degree (§ 120.05 [3]), and unlawful fleeing a police officer in a motor vehicle inthe third degree (§ 270.25). We reject the initial contention of defendant that SupremeCourt erred in failing sua sponte to order a competency hearing (see People v Tortorici,92 NY2d 757, 765-766 [1999], cert denied 528 US 834 [1999]; People v Morgan,87 NY2d 878, 879-880 [1995]; see also CPL 730.30 [2]). Shortly after defendant's arrest,the court ordered that defendant undergo a competency examination pursuant to CPL 730.30.Two psychiatrists then independently examined defendant, and each determined that he was notan incapacitated person. Due to concerns raised by defense counsel, the court ordered thatdefendant undergo another set of competency examinations shortly before trial. The same twopsychiatrists again independently determined that defendant was not an incapacitated person."[I]t is perfectly well settled that a trial court is entitled to give weight to the findings ofcompetency derived from the ordered examinations" (People v Ferrer, 16 AD3d 913, 914 [2005], lv denied 5NY3d 788 [2005], citing Morgan, 87 NY2d at 880; see CPL 730.30 [1]). "'Moreover, [we] note[ ] that defense counsel did not request a hearing and, as it has beenobserved, [defense] counsel was in the best position to assess defendant's capacity' " (People v Chicherchia, 86 AD3d953, 954 [2011], lv denied 17 NY3d 952 [2011], quoting Ferrer, 16 AD3d at914; see People v Taylor, 13 AD3d1168, 1170 [2004], lv denied 4 NY3d 836 [2005]). The court also " 'had theopportunity to interact with and observe defendant . . . , [and thus] the court hadadequate opportunity to properly assess defendant's competency' " (Chicherchia, 86AD3d at 954).
Defendant contends that, with respect to his conviction of assault in the second degree (PenalLaw § 120.05 [3]), the evidence is legally insufficient to establish that he caused theinjuries to the police officer who was struck by another patrol car arriving on the scene afterdefendant abandoned his vehicle following a high-speed chase and the police officer had pursueddefendant on foot. We reject that contention (see People v Carncross, 14 NY3d 319, 325-326 [2010]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). It is well settled that, "where adefendant's flight naturally induces a police officer to engage in pursuit, and the officer is killed[or injured] in the course of that pursuit, the causation element of the crime will be satisfied"(Carncross, 14 NY3d at 325). "Liability will attach even if the defendant's conduct is notthe sole cause of [the injuries] . . . if the actions were a sufficiently direct cause ofthe ensuing [injuries] . . . [A]n act qualifies as a sufficiently direct cause when theultimate harm should have been reasonably foreseen" (People v DaCosta, 6 NY3d 181, 184 [2006] [internal quotationmarks omitted]). Contrary to defendant's further contention, we conclude that, viewed in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), theevidence at trial is legally sufficient to support the conviction of reckless endangerment in thesecond degree (see § 120.20; see generally Bleakley, 69 NY2d at 495). Inaddition, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Defendant consented to the annotations on the verdict sheet and thus waived his presentcontention that the verdict sheet was improperly annotated (see CPL 310.20 [2];People v Brown, 90 NY2d 872, 874 [1997]; People v Hicks, 12 AD3d 1044, 1045 [2004], lv denied 4NY3d 799 [2005]). Additionally, defendant failed to preserve for our review his contention thatthe count of the indictment charging him with unlawful fleeing a police officer in a motor vehiclewas duplicitous (see People vSponburgh, 61 AD3d 1415, 1416 [2009], lv denied 12 NY3d 929 [2009]), andwe decline to exercise our power to review that contention as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]).
We reject the further contention of defendant that he was denied effective assistance ofcounsel (see generally People vCaban, 5 NY3d 143, 152 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]).Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Faheyand Sconiers, JJ.