| People v Small |
| 2013 NY Slip Op 05842 [109 AD3d 842] |
| September 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v James Small, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Linda Breen,and Jill Oziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ozzi, J.), rendered May 17, 2011, convicting him of obstructing governmentaladministration in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Kings County, for further proceedingsconsistent with CPL 160.50.
The defendant contends that the verdict of guilt was against the weight of theevidence. Upon the exercise of our factual review power (see CPL 470.15 [5]),we conclude that the verdict of guilt on the crime of obstructing governmentaladministration in the second degree was against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). "A person is guilty of obstructing governmental administration whenhe [or she] intentionally . . . prevents or attempts to prevent a public servantfrom performing an official function, by means of intimidation, physical force orinterference" (Penal Law § 195.05). Thus, a defendant may not be convicted ofobstructing governmental administration unless it is established that the police wereengaged in authorized conduct (see People v Lupinacci, 191 AD2d 589 [1993]).As determined by the Supreme Court, the initial chase of the defendant by the police wasnot supported by reasonable suspicion (see People v Lupinacci, 191 AD2d at589). Further, in light of the defendant's acquittal by the jury on the charges of criminalpossession of a weapon in the second degree and criminal possession of a weapon in thefourth degree, which we may consider in conducting a weight of the evidence review(see People v Rayam, 94 NY2d 557, 563 n [2000]; People v Otway, 71 AD3d1052, 1054 [2010]; Peoplev Lindsey, 52 AD3d 527, 530 [2008]), the evidence, when properly weighed,did not prove, beyond a reasonable doubt, that the officer was performing an officialfunction authorized by law when he tried to disarm the defendant following the chase (see People v Perez, 47 AD3d1192, 1193 [2008]; People v Lupinacci, 191 AD2d at 589; Matter ofVerna C., 143 AD2d 94 [1988]). Thus, the record reflects that, when consideringwhether the People satisfied the "performing an official function" element of the crime ofobstructing governmental administration in the second degree, the jury failed to give theweight properly due to its credibility finding that the defendant was not in possession of aweapon (see People v Lindsey, 52 AD3d at 530).[*2]
The defendant's remaining contentions have beenrendered academic in light of our determination.
Accordingly, the judgment must be reversed, the indictment dismissed, and thematter remitted to the Supreme Court, Kings County, for further proceedings consistentwith CPL 160.50. Skelos, J.P., Angiolillo, Chambers and Hinds-Radix, JJ., concur.