| People v Iovino |
| 2017 NY Slip Op 03080 [149 AD3d 1350] |
| April 20, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v BruceIovino, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedNovember 18, 2014 in Albany County, upon a verdict convicting defendant of the crime ofassault in the second degree.
On April 2, 2014, an undercover surveillance detail, which specifically targeted defendantand another individual, was conducted to investigate thefts at a Home Depot. The target vehiclewas a blue 2001 Dodge Durango, which arrived at the Home Depot. Investigators observeddefendant inside the store in the vicinity of a shopping cart containing two faucets and thereafterobserved the shopping cart empty. At approximately that time, a store alarm was activated due toan emergency door having been opened. Thereafter, the Dodge Durango exited the parking lotand, after police officers attempted to stop the vehicle, they engaged in a high speed chase, withspeeds in excess of 114 miles per hour. After the vehicle eventually stopped, defendant fled onfoot. An investigator chased defendant and, after confronting him, tackled defendant in theprocess of detaining him. Based on allegations that included that the investigator sustained aninjury to his left ring finger while tackling defendant, defendant was charged by indictment withthe crime of assault in the second degree. After a trial, defendant was convicted as charged andwas sentenced as a second felony offender to a prison term of six years with five years ofpostrelease supervision. Defendant appeals, and we affirm.
Defendant contends that his conviction was not supported by legally sufficient evidence[*2]and was against the weight of the evidence. Initially, althoughdefendant preserved his contention that he did not cause the investigator's injuries in his motionfor a trial order of dismissal, he did not contend that defendant lacked the requisite intent or thatthe investigator did not suffer an injury. Therefore, defendant failed to preserve all but hiscausation argument for the purposes of a legal insufficiency argument on this appeal (see People v Newkirk, 75 AD3d853, 855 [2010], lv denied 16 NY3d 834 [2011]). "Nonetheless, in deciding whetherthe verdict was against the weight of the evidence, we necessarily review the legal sufficiency ofthe evidence" (People v Powell, 128AD3d 1174, 1175 [2015] [citation omitted]).
A person is guilty of assault in the second degree when, "with intent to prevent a policeofficer from performing a lawful duty, he [or she] causes physical injury to such police officer"(People v Douglas, 143 AD2d 452, 452 [1988] [internal quotation marks, brackets andellipses omitted]; see Penal Law § 120.05 [3]). "Th[is] crime is. . . one of strict liability as far as the injury is concerned [and e]ven if the[defendant] caused the injury to the officer accidentally, he [or she is] guilty of assault in thesecond degree if the accident happened while he [or she] intentionally acted to prevent theperformance of the officer's duty" (People v Pierce, 201 AD2d 677, 678 [1994] [internalquotation marks and citations omitted], lv denied 83 NY2d 914 [1994]). "Physical injury,as used in the Penal Law, is defined as an 'impairment of physical condition or substantialpain' " (People v Hicks, 128AD3d 1221, 1222 [2015], lv denied 26 NY3d 930 [2015], quoting Penal Law§ 10.00 [9]). "To meet the statutory pain threshold, the pain must be more thanslight or trivial but need not be severe or intense" (People v Hicks, 128 AD3d at 1222[internal quotation marks and citations omitted]). "[I]t is well settled that, where a defendant'sflight naturally induces a police officer to engage in pursuit, and the officer is killed or injured inthe course of that pursuit, the causation element of the crime will be satisfied" (People v Britt, 132 AD3d 1254,1254 [2015], lv denied 26 NY3d 1108 [2016] [internal quotation marks, brackets andcitations omitted]).
Evidence was introduced that defendant fled law enforcement officials first in a high speedchase and then on foot. The investigator testified that he chased defendant on foot while yellingfor him to stop, all in an attempt to arrest him for larceny. As the investigator closed in ondefendant, defendant turned around with his hands up and fists clenched. In response to thisaggressive act, which the investigator testified appeared to indicate that defendant planned toattack him, the investigator struck and then tackled defendant. The investigator explained that hesuffered an injury to his left ring finger when his hand struck the ground as he fell withdefendant. An orthopedic surgeon testified that a small piece of the bone and ligament, or tendonconnected to the bone, had broken off of the investigator's finger and rolled up to the top of thefinger. The investigator explained that he had to immobilize the finger for five or six weeks, thatit hurt for several weeks and that, at the time of trial, seven months after the incident, he stillcould not fully extend the finger.
From defendant's flight in the vehicle, his flight on foot and his confrontation with theinvestigator, the jury could reasonably conclude that defendant intended to prevent theinvestigator from effecting a lawful arrest. Moreover, the jury could reasonably conclude thatdefendant caused the investigator's injury by first attempting to evade arrest and then byattempting to attack the investigator, causing the investigator to initiate the tackle. Further, thejury could rely on the medical evidence and the investigator's testimony to determine that theinvestigator sustained the requisite physical injury. Accordingly, the evidence is legally sufficientto establish that defendant caused the investigator to sustain his physical injury (see People vBritt, 132 AD3d at 1254). Moreover, deferring to the jury's credibility determinations, andconsidering the evidence that defendant intended to prevent the investigator from performing alawful arrest, the evidence that defendant caused the injury and the evidence of the extent of the[*3]investigator's injury, the jury's verdict was not against theweight of the evidence (see People vChandler, 94 AD3d 1155, 1156-1157 [2012], lv denied 19 NY3d 971 [2012]; People v Williams, 46 AD3d 1115,1117 [2007], lv denied 10 NY3d 818 [2008]).
Supreme Court did not abuse its discretion as to its Sandoval ruling. "Whether and towhat extent . . . prior convictions may be used on cross-examination [of adefendant] is a matter which rests in the sound discretion of the trial court after appropriatelybalancing the probative worth of the evidence as it relates to the defendant's credibility againstthe risk of unfair prejudice to the defendant, including whether it would discourage him [or her]from testifying" (People v Long, 269 AD2d 694, 695 [2000], lv denied 94 NY2d950 [2000]; see People v Bateman,124 AD3d 983, 985 [2015], lv denied 25 NY3d 949 [2015]). Of defendant's 17convictions for which the People sought to impeach his credibility, the court allowed full inquiryinto defendant's 2012 petit larceny conviction, 2010 petit larceny conviction, 2006 grand larcenyin the fourth degree conviction and 2003 grand larceny in the fourth degree conviction. The courtallowed a combined question on whether defendant was convicted of three separate petitlarcenies in 1999. The court precluded inquiry into defendant's 2012 and 2004 criminalpossession of a controlled substance in the seventh degree convictions, 2001 petit larcenyconviction, 2000 criminal possession of a controlled substance in the seventh degree conviction,1998 possession of a hypodermic instrument conviction, 1998 petit larceny conviction, 1997 petitlarceny conviction, 1997 attempted forgery conviction, 1996 criminal impersonation convictionand 1995 forgery in the third degree conviction. The larceny convictions that were subject toinquiry demonstrated defendant's "willingness to place his interests above that of society"(People v Bateman, 124 AD3d at 985). Moreover, those convictions were not too remotein time to be pertinent, the nature of the convictions were probative of defendant's credibility andhonesty and the commission of those crimes did not suggest a propensity to commit the crime forwhich defendant was on trial (see Peoplev Henderson, 22 AD3d 883, 884 [2005], lv denied 6 NY3d 776 [2006]).Considering this and the restrictions that Supreme Court placed on inquiring into defendant'sremaining convictions, the court did not abuse its discretion in regard to its Sandovalruling (see People v Reyes, 144AD3d 1683, 1686 [2016]; People vVictor, 139 AD3d 1102, 1110 [2016], lv denied 28 NY3d 1076 [2016]).
Likewise, given that evidence related to defendant's uncharged larceny at the Home Depotimmediately prior to the chase was necessary background and also essentially interwoven withthe proof that the investigator was performing a lawful duty in arresting defendant, SupremeCourt did not abuse its discretion in permitting the People to present proof on that issue (see People v Malloy, 124 AD3d1150, 1152 [2015], lv denied 26 NY3d 969 [2015]).[FN*] Moreover, defendant's contention that thePeople went beyond the bounds of the court's Molineux ruling is unpreserved.Defendant's contention that the court should have charged the jury on the lesser included offenseof obstructing governmental administration is also unpreserved given that he did not request sucha charge. Further, neither contention merits corrective action in the interest of justice.Defendant's remaining contentions are without merit.
Peters, P.J., Garry, Rose and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:After it made its ruling, SupremeCourt invited defendant to submit a proposed limiting instruction indicating that the proof couldnot be considered as propensity evidence. At the charge conference, defendant did not proposesuch a limiting instruction.