| People v Cespedes |
| 2014 NY Slip Op 07588 [122 AD3d 417] |
| November 6, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Richard Cespedes, Appellant. |
Steven Banks, The Legal Aid Society, New York (Natalie Rea of counsel), forappellant.
Cyrus R. Vance Jr., District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered February21, 2012, convicting defendant, after a jury trial, of assault in the second degree,unlawful imprisonment in the first degree, reckless endangerment in the second degreeand obstructing governmental administration in the second degree, and sentencing him toan aggregate term of five years, unanimously affirmed.
The court meaningfully responded to a note from the deliberating jury (seePeople v Almodovar, 62 NY2d 126, 131 [1984]; People v Malloy, 55 NY2d296, 301-302 [1982], cert denied 459 US 847 [1982]). The jury asked whatportion of the incident related to the assault charge, and it suggested alternative temporallimitations. Although the actual injury to an officer occurred during a particular portionof the incident, the entire sequence of events had a bearing on whether the elements ofsecond-degree assault under Penal Law § 120.05 (3) had been established.Therefore, the court properly exercised its discretion when it responded by instructing thejury, as it had already done in its main charge, to consider all of the evidence (seePeople v Craig, 293 AD2d 351 [1st Dept 2002], lv denied 98 NY2d 674[2002]). Defendant has not demonstrated that this response could have caused anyprejudice (see People v Agosto, 73 NY2d 963, 966 [1989]).
The court properly refused to submit the lesser included offense second-degreeunlawful imprisonment (see People v Negron, 91 NY2d 788 [1998]). There wasno reasonable view of the evidence, viewed most favorably to defendant, that herestrained the victim by refusing to let her out of his vehicle but did not expose her to arisk of serious physical injury. First-degree unlawful imprisonment only requires that thecircumstances expose the restrained person to a "risk," of unspecified degree, of seriousphysical injury. Defendant's grossly reckless driving during a lengthy high-speed chaseon busy Manhattan streets clearly established such a risk, even if he was driving arelatively safe [*2]type of vehicle, and there was noreasonable view of the evidence to the contrary. Concur—Sweeny, J.P., Andrias,Saxe, Richter and Feinman, JJ.