| People v Cofield |
| 2015 NY Slip Op 06515 [131 AD3d 539] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Cofield, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (A. Alexander Donn of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Daniel Bresnahan of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Queens County(Latella, J.), both rendered March 13, 2012, convicting him of obstructing governmentaladministration in the second degree under indictment No. 10485/10, and assault in thesecond degree (two counts) under indictment No. 10358/11, after a nonjury trial, andimposing sentences.
Ordered that the judgment convicting the defendant of obstructing governmentaladministration in the second degree under indictment No. 10485/10, is reversed, on thefacts, that indictment is dismissed, and the matter is remitted to the Supreme Court,Queens County, for the purpose of entering an order in its discretion pursuant to CPL160.50; and it is further,
Ordered that the judgment convicting the defendant of assault in the second degree(two counts) under indictment No. 10358/11, is modified, on the facts, by vacating theconviction of assault in the second degree under count two of that indictment, vacatingthe sentence imposed thereon, and dismissing that count of that indictment; as somodified, the judgment is affirmed.
According to the evidence presented at trial, on August 2, 2010, police officerspursued Claudia Nunez until Nunez entered an apartment in which the defendant waslocated. After the officers entered the apartment, the defendant said "sic 'em" andreleased a pit bull, which then bit the face of one of the officers. After a nonjury trial, thedefendant was convicted of one count of obstructing governmental administration in thesecond degree, one count of assault in the second degree under Penal Law§ 120.05 (2) for intentionally causing physical injury to another person bymeans of a dangerous instrument, and one count of assault in the second degree underPenal Law § 120.05 (3) for causing physical injury to a police officer withthe intent to prevent the officer from performing a lawful duty. The defendant appeals,contending that the verdict was against the weight of the evidence.
"[A] defendant may not be convicted of obstructing governmental administrationunless it is established that the police were engaged in authorized conduct" (People v Small, 109 AD3d842, 843 [2013]). Similarly, "[t]o sustain a conviction of assault in the second [orfirst] degree under [*2]Penal Law § 120.05(3), the People must establish that the injured police officer was engaged in a lawful dutyat the time of the assault by the defendant" (People v Hurdle, 106 AD3d 1100, 1103 [2013] [internalquotation marks omitted]).
As we held in People vNunez (111 AD3d 854 [2013]), the police officers' pursuit of Nunez and theirentry into the apartment where the defendant was located were unlawful (see id.at 855-856). Accordingly, the verdict was against the weight of the evidence as to thecounts of obstructing governmental administration in the second degree and assault in thesecond degree under Penal Law § 120.05 (3), and we vacate thoseconvictions and the sentences imposed thereon (see People v Small, 109 AD3d at843; People v Hurdle, 106 AD3d at 1103-1104; People v Lindsey, 52 AD3d527, 529-530 [2008]; People v Voliton, 190 AD2d 764, 766-767 [1993],affd 83 NY2d 192 [1994]).
With respect to the assault in the second degree count under Penal Law§ 120.05 (2), however, we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Mastro, J.P.,Dickerson, Maltese and Barros, JJ., concur.