| People v Roach |
| 2014 NY Slip Op 05210 [119 AD3d 1070] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1](July 10, 2014)
| 1 The People of the State of New York, Respondent, vRandy L. Roach, Appellant. |
Richard V. Manning, Parishville, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Rogers, J.), rendered April 14, 2011, upon a verdict convicting defendant of the crimesof menacing a police officer (two counts) and resisting arrest.
Defendant was charged in a five-count indictment arising out of a confrontation withtwo state troopers during which he carried and repeatedly refused to relinquish a shotgun.After a jury trial, defendant was convicted of resisting arrest and two counts of menacinga police officer. County Court sentenced him to an aggregate term of three years inprison followed by 1
Defendant asserts that the verdict is legally insufficient and against the weight of theevidence, specifically claiming that the evidence failed to establish that he intended toplace the two state troopers in fear of physical injury or that the troopers' fear wasreasonable under the circumstances. "A person is guilty of menacing a police officer. . . when he or she intentionally places or attempts to place [the] officer. . . in reasonable fear of physical injury . . . or death bydisplaying a . . . shotgun . . . , whether operable or not" (PenalLaw § 120.18; seePeople v Williams, 98 AD3d 1279, 1279 [2012], lv denied 20 NY3d1066 [2013]). "Intent may be inferred from a defendant's conduct and from thesurrounding circumstances" (People v McCottery, 90 AD3d 1323, 1324 [2011], lvdenied 19 NY3d 975 [2012] [internal quotation marks and citationsomitted]).
[*2] The trial testimony establishedthat, on the morning of November 30, 2009, a state trooper responded to a 911 call fromdefendant's mother reporting a domestic dispute at her residence. While speaking withdefendant's mother inside the enclosed porch of the residence, the trooper hearddefendant yell for him to get off the property. As the trooper descended the steps of theporch, he turned to see defendant—who had appeared on theporch—holding a shotgun "pointed in [his] direction." The trooper testified that heimmediately drew his sidearm and repeatedly ordered defendant to drop his gun.Defendant refused, lowered the shotgun, pointed it toward the ground and turned awayfrom the trooper. Defendant then turned slightly back toward the trooper and raised thegun approximately eight inches before pointing it back down and moving quickly off ofthe porch and toward the back of the house.
By this time, a second trooper had arrived at the scene. They both took cover behindthe edge of the porch and subsequently behind a vehicle parked in the driveway whilecontinuing to demand that defendant drop his weapon. According to the troopers,defendant entered and exited the rear door of the residence at least twice holding theshotgun, although not pointing it at them, while repeatedly yelling for the officers to"come and get the gun . . . from him." Defendant then came to the edge ofthe driveway approximately 15 to 20 feet from the troopers, racked the shotgun multipletimes and stated that it was not loaded. Believing defendant's weapon to be unloaded,both troopers attempted to approach defendant, who moved quickly behind a detachedgarage and out of sight for approximately 5 to 10 seconds before passing back into thehouse with the gun. According to one of the troopers, this was enough time for defendantto load the shotgun. Defendant again came to the edge of the driveway, this timeunarmed, and was ultimately arrested after a struggle with the troopers. Upon searchingdefendant, the troopers found five bird shot shotgun shells in his pocket. When theshotgun was seized from within the residence, it was not loaded. One of the trooperstestified that, during this incident, he "was very concerned for [his] welfare" and"[s]cared that [he] might get shot," while the other trooper stated that he was "worriedthat somebody was going to get hurt or shot."
Defendant does not challenge the troopers' account of the incident, instead notingthat he never directly pointed the shotgun at either trooper and, with one brief exception,carried the gun pointed upward in a "port arms" position without ever placing his fingeron the trigger. However, upon viewing the evidence in the light most favorable to thePeople, we find a valid line of reasoning and permissible inferences from which the jurycould have rationally concluded that defendant intended to place the two troopers in fearof physical injury or death and that such fear on their part was reasonable (see Peoplev Williams, 98 AD3d at 1279-1280; People v McCottery, 90 AD3d at1324-1325). Further, after weighing the relative probative force of the testimony and thestrength of the conflicting inferences to be drawn therefrom, we are unpersuaded that thejury's verdict is against the weight of the evidence (see People v Principio, 107 AD3d 1572, 1573 [2013],lv denied 22 NY3d 1090 [2014]; People v McCottery, 90 AD3d at1324-1325; People vBeverly, 74 AD3d 1480, 1481 [2010], lv denied 15 NY3d 802[2010]).
Defendant next asserts that County Court erred in denying his motion to suppress theshotgun because the warrantless entry into his mother's residence was without herconsent and no emergency circumstances existed. Even assuming that suppression of theshotgun was warranted, we find that any such error is harmless beyond a reasonabledoubt (see People v Moon, 279 AD2d 804, 805 [2001], lv denied 96NY2d 803 [2001]; People v Maldonado, 75 AD2d 558, 559 [1980]). In light ofthe uncontroverted and overwhelming evidence of defendant's guilt, "there is noreasonable possibility that any error permitting the shotgun itself to be admitted intoevidence . . . in any way contributed to [defendant's] convictions"(People v [*3]Moon, 279 AD2d at 806; seePeople v Crimmins, 36 NY2d 230, 237 [1975]; People v Wells, 143 AD2d708, 709 [1988], lv denied 73 NY2d 861 [1988]; compare People vLevan, 62 NY2d 139, 145-146 [1984]).
Nor was defendant denied the effective assistance of counsel. Defendant faultscounsel for failing to object to the verdict convicting him of menacing a police officer asbeing repugnant, given his acquittal on the charge of criminal possession of a weapon inthe third degree. However, because the jury could have determined that an unloadedshotgun did not constitute a dangerous or deadly instrument under the presentcircumstances, acquittal of the weapon possession charge did not negate an element ofthe crime of menacing a police officer (see Penal Law§§ 10.00 [12], [13]; 120.18, 265.01 [2]; 265.02 [1]; People v Peralta, 3 AD3d353, 355 [2004], lv denied 2 NY3d 764 [2004]; People v Wilson,252 AD2d 241, 248-249 [1998]; People v Wood, 10 AD2d 231, 234 [1960]).Nor can counsel be deemed ineffective for failing to object to County Court's adequateapprisal of defendant's Antommarchi rights (see People v Flinn, 22 NY3d 599, 601-602 [2014]; People v Hoppe, 96 AD3d1157, 1157-1158 [2012], lv denied 19 NY3d 1026 [2012]). Viewed in itsentirety, the record reveals that counsel made appropriate motions, thoroughlycross-examined the witnesses, elicited testimony favorable to defendant, made cogentopening and closing statements, obtained a dismissal of one count of the indictment andsecured an acquittal on another count. Considering the totality of the circumstances, wefind that defendant was afforded meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137,146-147 [1981]).
Finally, defendant was not deprived of a fair trial based on the People's failure to turnover a tape recording of his mother's 911 call. The People provided sufficient proof thatthe tape recording was inadvertently destroyed and there is no reasonable possibility thatsuch evidence would have affected the jury's verdict (see People v Fuentes, 12 NY3d 259, 263 [2009]; People v Auleta, 82 AD3d1417, 1420-1421 [2011], lv denied 17 NY3d 813 [2011]; People vVancleave, 286 AD2d 941, 941 [2001], lv denied 97 NY2d 689 [2001],cert denied 537 US 1052 [2002]). Defendant's remaining contentions have beenreviewed and found to be without merit.
Rose, Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.