| People v Hurdle |
| 2013 NY Slip Op 03849 [106 AD3d 1100] |
| May 29, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Walter Hurdle, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Buchter, J.), rendered September 8, 2009, convicting him of assault in the first degree,assault on a police officer, assault in the second degree, and reckless driving, upon a juryverdict, and imposing sentence. By decision and order of this Court dated October 17,2012, the appeal was held in abeyance and the matter was remitted to the Supreme Court,Queens County, to hear and report on the defendant's challenge to the prosecutor'sexercise of a peremptory challenge against a black venireperson (see People v Hurdle, 99 AD3d943 [2012]). The Supreme Court has filed its report.
Ordered that the judgment is modified, on the law, by vacating the convictions ofassault in the first degree and assault on a police officer, vacating the sentences imposedthereon, and dismissing those counts of the indictment; as so modified, the judgment isaffirmed.
The Supreme Court's determination that the explanations provided by the People forexercising a peremptory challenge to a black female venireperson were not pretextual isentitled to great deference on appeal and will not be disturbed since it is supported by therecord (see Snyder v Louisiana, 552 US 472, 477 [2008]; Miller-El vCockrell, 537 US 322, 339 [2003]; Batson v Kentucky, 476 US 79 [1986];People v Simmons, 79 NY2d 1013, 1015 [1992]; People v Scott, 70 AD3d978, 980 [2010]; People vJerome, 49 AD3d 556, 557 [2008]). Nevertheless, for the reasons discussedbelow, we find that the evidence was legally insufficient to establish the defendant's guiltbeyond a reasonable doubt of assault in the first degree and assault on a police officer.
On January 18, 2007, at approximately 8:00 p.m., the defendant was sitting in hislegally parked vehicle, a black SUV, when an unmarked police car pulled up to thedriver's side of the SUV, and one of the four uniformed officers in the car, Sergeant JohnPagnotta, had a brief conversation with the defendant. Unsatisfied with the defendant'sanswers to his questions, the sergeant directed the officer driving the police car to pull infront of the SUV and park at an angle, blocking the defendant from pulling out of hisparking space. The officers then exited the police car and approached the SUV. SergeantPagnotta opened the door on the driver's side of the defendant's vehicle; standingbetween the door and the door jamb, he continued to question the defendant. When [*2]Sergeant Pagnotta ordered him to exit the car, the defendantshifted into drive and pressed his foot down on the gas pedal, crashing the SUV into thepolice car in front of it and dragging Sergeant Pagnotta, trapped between the door andthe door jamb of the SUV. When the SUV pulled away from the police car, SergeantPagnotta was released and thrown into the middle of the street, where he was almost hitby an oncoming car. As a result of this incident, Sergeant Pagnotta sustained severeinjuries.
Contrary to the People's contention, the defendant's argument regarding the legalsufficiency of his conviction of assault in the first degree is preserved for appellatereview (see CPL 470.05 [2]; People v Heidgen, 87 AD3d 1016, 1020 [2011], lvgranted 17 NY3d 957 [2011]; cf. People v Hawkins, 11 NY3d 484, 493 [2008]). Aperson commits assault in the first degree pursuant to Penal Law § 120.10 (3)when, "[u]nder circumstances evincing a depraved indifference to human life, he [or she]recklessly engages in conduct which creates a grave risk of death to another person, andthereby causes serious physical injury to another person." "Depraved indifference murder[or assault] differs from intentional murder [or assault] in that it results not from aspecific, conscious intent to cause death [or injury], but from an indifference to ordisregard of the risks attending defendant's conduct" (People v Heidgen, 87AD3d at 1020 [internal quotation marks omitted]; see People v Feingold, 7 NY3d 288, 293 [2006]; People v Gonzalez, 1 NY3d464, 467 [2004]). " 'Reflecting wickedness, evil or inhumanity, as manifested bybrutal, heinous and despicable acts, depraved indifference is embodied in conduct that isso wanton, so deficient in a moral sense of concern, so devoid of regard of the life orlives of others, and so blameworthy as to render the actor as culpable as one whoseconscious objective is to kill [or to cause serious physical injury to another person]' " (People v McMillon, 31 AD3d136, 139 [2006], quoting People v Suarez, 6 NY3d 202, 214 [2005]). "The elementof depraved indifference to human life comprises both depravity and indifference, andhas meaning independent of recklessness and the gravity of the risk created" (Peoplev McMillon, 31 AD3d at 139). Thus, for example, "a reckless homicide is notelevated to depraved indifference murder solely because the defendant's conduct createsa grave or even an 'inevitable' risk of death" (id., quoting People vSuarez, 6 NY3d at 214).
"The question of whether the defendant possessed the mens rea of depravedindifference to human life is highly fact-sensitive, requiring a case-by-case analysis"(People v Heidgen, 87 AD3d at 1020; see People v McPherson, 89 AD3d 752, 757 [2011], lvgranted 19 NY3d 969 [2012]; People v Taylor, 79 AD3d 944, 948 [2010]). Here, thepolice witnesses' testimony established that the car door was "fully opened, fully ajar"during Sergeant Pagnotta's conversation with the defendant, that Sergeant Pagnottabecame trapped between the door and the door jamb after the impact of the SUV causedthe police car to pivot and collide with the driver's side of the SUV, and that "when [thedefendant] put the car into drive and he hit the gas, it was instant, he struck [the police]vehicle," Sergeant Pagnotta and the police car were dragged along about 15 to 20 feet,until the defendant made a right turn, and Sergeant Pagnotta was thrown into the road.Under these facts, where the defendant was attempting to get away from the officers'unlawful questioning, where the injuries were caused not by the direct crash, but whenthe police car pivoted after being hit, and where it all happened in an instant, "theevidence did not establish the degree of depravity and indifference to human life requiredfor depraved indifference [assault]" (People v McMillon, 31 AD3d at 142).Under these circumstances, the defendant did not display conduct " 'so wanton, sodeficient in a moral sense of concern, so devoid of regard of the life or lives of others,and so blameworthy as to render the actor as culpable as one' " who intentionally causedthe serious injuries (id. at 139 [internal quotation marks omitted], quotingPeople v Suarez, 6 NY3d at 214; see People v Prindle, 16 NY3d 768 [2011]; cf. People vGomez, 65 NY2d 9 [1985]; People v Heidgen, 87 AD3d at 1022-1023; People v Mooney, 62 AD3d725 [2009]). Thus, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that thereis simply no "valid line of reasoning and permissible inferences [that] could lead arational person to the conclusion" that the defendant acted with depraved indifferencewhen he caused the injuries to Sergeant Pagnotta (People v Williams, 84 NY2d925, 926 [1994]; see People vMcMillon, 31 AD3d 136 [2006]).
Also preserved for appellate review, contrary to the People's contention, is the issueof the legal sufficiency of the evidence establishing the "lawful duty" element of thecrime of assault on a police officer, and here, too, even viewed in the light mostfavorable to the prosecution (Penal [*3]Law §120.08; see People v Contes, 60 NY2d 620, 621 [1983]), the evidence waslegally insufficient to support that conviction. A person commits the crime of assault on apolice officer when, "with intent to prevent a . . . police officer. . . from performing a lawful duty, he [or she] causes serious physicalinjury to" the officer (Penal Law § 120.08). "To sustain a conviction of assault inthe second [or first] degree under Penal Law § 120.05 (3), the People mustestablish that the injured police officer was engaged in a lawful duty at the time of theassault by the defendant" (People v Lindsey, 52 AD3d 527, 529 [2008] [internalquotation marks omitted]; see People v Sawyer, 270 AD2d 293, 294 [2000];People v Greene, 221 AD2d 559, 560 [1995]).
Here, the police conduct in pulling in front of the defendant's parked vehicle so as toblock his ability to pull out of the parking space "constituted a stop, which requiredreasonable suspicion that the defendant [was] either involved in criminal activity orposed some danger to the police" (People v Lopez, 75 AD3d 610, 612 [2010]; see Peoplev Jennings, 45 NY2d 998 [1978]; People v De Bour, 40 NY2d 210 [1976];People v Creary, 61 AD3d887, 889 [2009]). However, Sergeant Pagnotta's testimony was clear that, at no timeprior to the positioning of the police car so as to block the defendant's vehicle, nor duringthe ensuing encounter after Sergeant Pagnotta got out of the police car and approachedthe window of the defendant's vehicle, was the defendant observed to be engaged in anycriminal activity, or in any activity that would have aroused reasonable suspicion. In fact,not only was the evidence insufficient to establish that the police had an objective,credible reason for approaching the defendant in the first place but, also, SergeantPagnotta's testimony indicated that the initial approach was a mistake, since SergeantPagnotta had intended for the officer driving the police car to pull up to a grey car parkedbehind the defendant's vehicle. Furthermore, neither the defendant's startled demeanornor his responses to the police inquiry provided the officers with "the quantum ofknowledge sufficient to induce an ordinarily prudent and cautious man under thecircumstances to believe criminal activity [was] at hand" (People v Cantor, 36NY2d 106, 112-113 [1975]). Thus, the police lacked reasonable suspicion, which isrequired to make a car stop (see People v Banks, 85 NY2d 558, 562 [1995];People v May, 81 NY2d 725, 727-728 [1992]; People v Argyris, 99 AD3d808, 810 [2012]; People v Lopez, 75 AD3d at 612; People v Creary,61 AD3d at 888; People v Bulvard, 213 AD2d 263 [1995]; People vVoliton, 190 AD2d 764 [1993], affd 83 NY2d 192 [1994]; cf. People vDe Bour, 40 NY2d at 220). Moreover, the "[d]efendant's later conduct cannotvalidate an encounter that was not justified at its inception" (People v Moore, 6 NY3d496, 498 [2006]; see People v De Bour, 40 NY2d at 215). Therefore, evenif, as the police witnesses testified, the defendant did not furnish his driver's license whenrequested, that could not justify the initial stop (see People v May, 81 NY2d at727-728). The People's attenuation argument is unpreserved for consideration uponappeal (see People vHunter, 17 NY3d 725, 728 [2011]; People v Nieves, 67 NY2d 125,135-136 [1986]) and, in any event, is without merit.
The defendant's remaining contentions either are academic in light of ourdetermination or involve matter dehors the record. Skelos, J.P., Leventhal, Chambers andLott, JJ., concur.