| People v Molineaux |
| 2017 NY Slip Op 09206 [156 AD3d 1250] |
| December 28, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Eugene Molineaux, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered June 21,2016 in Albany County, upon a verdict convicting defendant of the crime of assault in the seconddegree.
Defendant was charged by indictment with assault in the second degree stemming from anincident during which a police officer for the City of Albany Police Department (hereinafter thevictim) was injured after being sprayed by defendant with a canister of pepper spray while shewas responding to a noise complaint at defendant's residence. Following a suppression hearingand a jury trial, defendant was convicted as charged and was sentenced, as a second felonyoffender, to a prison term of five years, plus five years of postrelease supervision. Defendantappeals, and we affirm.
Defendant contends that the verdict is not supported by legally sufficient evidence becausethe People failed to prove that the victim was performing a lawful duty and that defendantintended to prevent such performance. We disagree. When conducting a legal sufficiencyanalysis, "we view the evidence in the light most favorable to the People and evaluate 'whetherthere is any valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial and as a matter of lawsatisfy the proof and burden requirements for every element of the crime charged' " (People v Graham, 138 AD3d1242, 1242 [2016], lv denied 28 NY3d 930 [2016], quoting People vBleakley, 69 NY2d 490, 495 [1987]). As relevant here, "[a] person is guilty of assault in thesecond degree when . . . [w]ith intent to prevent a . . . police officer. . . from performing a lawful duty, . . . he or she causes physical injuryto such . . . police officer" (Penal Law § 120.05 [3]).[*2]"To sustain such a conviction, the People must establish that theinjured police officer was engaged in a lawful duty at the time of the assault by the defendant"(People v Dorsey, 151 AD3d1391, 1394 [2017] [internal quotation marks, brackets, ellipsis and citations omitted], lvdenied 30 NY3d 949 [2017]; seePeople v Tucker, 141 AD3d 748, 750 [2016]).
Another officer for the City of Albany Police Department testified that while responding to a911 call for loud music at defendant's residence during the overnight hours, he went to the sideyard to assist the victim, who was talking to a woman on the other side of a stockade fence. Thevictim was identifying herself as a police officer and asking that the resident come out to thefront yard to accept a ticket for the loud noise when defendant entered the rear yard, approachedthe fence line and, without saying anything, held up a black canister and sprayed it at theofficers.[FN1] The victimwas struck by the stream from the canister, which the other officer realized was pepper spray.Viewing this evidence in the light most favorable to the People, there is a valid line of reasoningand permissible inferences that could lead a rational person to the conclusion reached by the jury,that the victim was engaged in a lawful duty and that defendant acted with intent to prevent herfrom performing that lawful duty (see People v Graham, 138 AD3d at 1243). Further,"viewing the evidence in a neutral light and giving due deference to the jury's credibilitydeterminations" (People v Pine, 126AD3d 1112, 1115 [2015], lv denied 27 NY3d 1004 [2016]), we find that the verdictwas not against the weight of the evidence (see People v Johnson, 150 AD3d 1390, 1394 [2017], lvdenied 29 NY3d 1128 [2017]).
Moreover, we disagree with defendant's contention that Supreme Court abused its discretionin allowing a photograph of the intubated victim into evidence. "Unless photographs lackprobative value and are presented solely for the purpose of inflaming a jury, they are admissiblein a criminal trial, particularly where they tend to support a material issue or corroborate otherevidence in the case" (People vPowell, 115 AD3d 998, 999-1000 [2014] [internal quotation marks and citationsomitted], lv denied 23 NY3d 1024 [2014]). The photograph was probative of physicalinjury, a disputed and material issue, and also illustrated and corroborated medical testimony (see People v Alvarez, 38 AD3d930, 931 [2007], lv denied 8 NY3d 981 [2007]). In addition, as it served otherpurposes than to merely arouse the emotions of the jury and prejudice defendant (see People vWood, 79 NY2d 958, 960 [1992]; People v Pobliner, 32 NY2d 356, 370 [1973],cert denied 416 US 905 [1974]; People v Skeen, 139 AD3d 1179, 1181-1182 [2016], lvdenied 27 NY3d 1155 [2016]), the court properly exercised its discretion in allowing it intoevidence and giving an appropriate limiting instruction (see People v Powell, 115 AD3dat 1000; People v Alvarez, 38 AD3d at 932).
Similarly, Supreme Court properly denied defendant's Batson challenge made afterthe People struck the only African-American juror on the panel. "Under the three-step testformulated under Batson and its progeny to determine whether peremptory challenges arebeing employed as a tool of invidious discrimination, the party challenging the use ofperemptories must make out a prima facie case of purposeful discrimination and, ifaccomplished, the nonmovant must come forward with race-neutral reasons for each of theperemptories challenged . . . . The third step of the Batson inquiry requiresthe trial court to make an ultimate factual [*3]determination onthe issue of discriminatory intent based on all of the facts and circumstances presented" (People v Knowles, 79 AD3d 16,20 [2010] [internal quotation marks, brackets, emphasis and citations omitted], lv denied16 NY3d 896 [2011]). Here, defendant pointed to the challenged juror being the sole AfricanAmerican on the panel and provided some of the juror's characteristics, but failed to demonstratethat other jurors who were not African American and who had the same relevant characteristicsas the challenged juror were accepted (see People v Morris, 140 AD3d 1472, 1476 [2016], lvdenied 28 NY3d 1074 [2016]; People v King, 277 AD2d 708, 708 [2000], lvdenied 96 NY2d 802 [2001]). Therefore, defendant did not establish that the People'speremptory challenge was based on the juror's race, as he "failed to identify, allege or developfacts or other relevant circumstances sufficient to raise an inference that the prosecutor used thechallenge for discriminatory purposes" (People v King, 277 AD2d at 708 [citationsomitted]; see People v Bolling, 79 NY2d 317, 323-324 [1992]; People v Morris,140 AD3d at 1475-1476; People v Colon, 307 AD2d 378, 380 [2003], lv denied100 NY2d 619 [2003]). While defendant further contends that the court's ruling was procedurallyflawed as the three-step process was not followed, the order of events establishes that the courtnever went beyond step one because it found that defendant did not make out a prima facie caseof discrimination. Therefore, the court's ruling was not procedurally flawed as the inquiry movesto step two only if a prima facie case of discrimination has been established (see People v Acevedo, 141 AD3d843, 846 [2016]; People v Knowles, 79 AD3d at 20).[FN2]
Defendant's further claim that Supreme Court erred in refusing to charge reckless assault inthe third degree as a lesser included offense is also without merit. Assault in the third degreerequires a defendant to recklessly cause physical injury to another person (see Penal Law§ 120.00 [2]); however, assault in the second degree (see Penal Law§ 120.05 [3]) is a crime of "strict liability as far as the injury is concerned and evenif the defendant caused the injury to the officer accidentally, he or she is guilty of assault in thesecond degree if the [injury] happened while he or she intentionally acted to prevent theperformance of the officer's duty" (People v Iovino, 149 AD3d 1350, 1352 [2017] [internal quotationmarks, brackets and citation omitted], lv denied 30 NY3d 950 [2017]). "[W]hen thegreater crime is an offense of strict liability with respect to an element of required conduct, nooffense which includes as part of its required conduct a culpable mental state [as to that element]can be a lesser included offense because it is possible to commit the greater offense without 'bythe same conduct' committing the lesser" (People v Green, 56 NY2d 427, 431 [1982]).Therefore, as reckless assault in the third degree is not, as a matter of law, a lesser includedoffense of assault in the second degree on a police officer, there was no error in the court's refusalto charge reckless assault in the third degree. Defendant's contention that the court improperlyinstructed the jury as to the elements of obstructing governmental administration, which wascharged as a lesser included offense, is moot inasmuch as the jury rendered a guilty verdict on thegreater offense and, therefore, appropriately did not reach the lesser included offense (seePeople v Kimball, 241 AD2d 698, 699 [1997], lv denied 91 NY2d 835 [1997]),which was deemed dismissed as a matter of law (see CPL 300.40 [3] [b]; People vSkinner, 211 AD2d 979, 980 [1995], lv denied 86 NY2d 741 [*4][1995]).
Likewise, Supreme Court did not err in denying defendant's request to read a proposedinstruction to the jury as to the meaning of "lawful duty." The court correctly refused this requestsince police exercise lawful duties in many ways, including responding to 911 calls, and the courtproperly read the pattern jury instruction to the jury, which does not define lawful duty(see CJI2d[NY] Penal Law § 120.05 [3]). Further, by not specificallydefining lawful duty, the court did not usurp the jury's role and, instead, properly left the questionsquarely in its hands (cf. People v Milhouse, 246 AD2d 119, 123 [1998]; People vGreene, 221 AD2d 559, 560 [1995]).
Peters, P.J., Garry, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:Defendant, in his brief, contendsthat the victim was sprayed with pepper spray only after she and the other police officersrepeatedly attempted to perform an illegal entry into defendant's apartment. This contention isentirely without support in the record on appeal.
Footnote 2:Despite the People voluntarilyoffering a race-neutral reason for their peremptory challenge, we find that the issue of whetherdefendant established a prima facie case of discrimination is not moot as Supreme Court neverreached the second or third step of the Batson inquiry and, therefore, did not rule on theultimate question of intentional discrimination (see People v Smocum, 99 NY2d 418, 423[2003]; People v Grafton, 132AD3d 1065, 1067 [2015], lv denied 26 NY3d 1145 [2016]).