| People v Richardson |
| 2015 NY Slip Op 07069 [132 AD3d 1239] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCardell Richardson, Also Known as "C," Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Martin P. McCarthy, II, ofcounsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.),rendered January 14, 2011. The judgment convicted defendant, upon a nonjury verdict,of assault in the second degree, attempted criminal possession of a weapon in the thirddegree and pedestrian on roadway.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of assault in the second degree anddismissing count four of the indictment and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof, inter alia, assault in the second degree (Penal Law § 120.05 [3]) andattempted criminal possession of a weapon in the third degree(§§ 110.00, 265.02 [1]), defendant contends that the evidence islegally insufficient to support the assault conviction. We agree. A person is guilty ofassault in the second degree under Penal Law § 120.05 (3) when, "[w]ithintent to prevent . . . a police officer . . . from performing alawful duty . . . , he or she causes physical injury to such . . .police officer" (id.). Here, a police officer stopped defendant for walking in themiddle of a roadway in violation of Vehicle and Traffic Law § 1156 (a),and the suppression court found that the search of defendant's person by another officerwas not lawful (see People v Adams, 32 NY2d 451, 455 [1973]; People vMarsh, 20 NY2d 98, 101 [1967]; cf. People v Troiano, 35 NY2d 476,477-478 [1974]). We have previously held that even the more limited pat-down search ofa traffic offender "is not authorized 'unless, when the [person or] vehicle is stopped, thereare reasonable grounds for suspecting that the officer is in danger or there is probablecause for believing that the offender is guilty of a crime rather than merely a simpletraffic infraction' " (People v Everett, 82 AD3d 1666, 1666 [2011], quotingMarsh, 20 NY2d at 101). Here, as in Everett, the search of defendant wasunauthorized, and the officer was injured only after he attempted to perform the unlawfulsearch (see id.). Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we thus conclude that theevidence is legally insufficient to establish that the officer was injured while undertakinga lawful duty (see Everett, 82 AD3d at 1667; see generally People vBleakley, 69 NY2d 490, 495 [1987]). We therefore modify the judgment byreversing that part convicting defendant of assault in the second degree and dismissingcount four of the indictment.
In light of our conclusion, we do not reach defendant's contention that County Courtshould have dismissed the assault count under the theory of law of the case.
We reject defendant's contention that the evidence is legally insufficient to supportthe conviction of attempted criminal possession of a weapon in the third degree. During astruggle with police officers after the unlawful search, defendant grabbed and held ontoan officer's service weapon, which was secured in her holster. The testimony of theofficers concerning [*2]defendant's attempts to grab thatofficer's weapon and remove it from the holster is sufficient to establish that defendantintended to possess the weapon and "engage[d] in conduct which tend[ed] to effect thecommission of [the] crime" of criminal possession of a weapon in the third degree (PenalLaw § 110.00). Contrary to defendant's contention, the People were notrequired to establish the operability of the officer's service weapon because theoperability of a weapon is not a necessary element of the crime of attempted criminalpossession of a weapon in the third degree (see People v Saunders, 85 NY2d 339,342-343 [1995]). Furthermore, viewing the evidence in light of the elements of thatcrime as well as the traffic infraction in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict on those two counts is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
Contrary to defendant's further contention, the grand jury proceeding was notdefective, and the court thus did not err in refusing to dismiss the indictment on thatground (see CPL 210.20 [1] [c]). One of the grand jurors indicated that he knewthe officer who had been injured in the assault. At that point, the prosecutor engaged thegrand juror in the requisite "further inquiry" outside the presence of the other grandjurors (People v Cullen, 175 AD2d 658, 659 [1991], lv denied 78 NY2d1010 [1991]). That inquiry revealed that the relationship between the grand juror and theofficer, who saw each other at social outings one to two times a year, "was a nominal andrelatively inconsequential relationship" (People v Dykeman, 47 Misc 3d 689, 691 [2015]), i.e., thegrand juror and the officer did not have a " 'close relationship' " thatwould " 'raise[ ] the real risk of potential prejudice' " (People v Connolly, 63 AD3d1703, 1705 [2009]). Moreover, the grand juror specifically affirmed that he wouldbe able to remain fair and impartial (cf. People v Revette, 48 AD3d 886, 888 [2008]). We thusconclude that "the prosecutor's voir dire of the grand juror was appropriate and sufficientto ensure such juror's impartiality" (People v Farley, 107 AD3d 1295, 1296 [2013], lvdenied 21 NY3d 1073 [2013]).
Finally, we conclude that the sentence imposed on the remaining counts of theindictment is not unduly harsh or severe. Present—Scudder, P.J., Smith, Centra,Peradotto and Carni, JJ.