| People v Funk |
| 2018 NY Slip Op 07558 [166 AD3d 1487] |
| November 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Allen D. Funk, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, Davison Law Office PLLC (Mary P.Davison of counsel), for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston ofcounsel), for respondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered November 20, 2015. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree, resisting arrest, reckless endangerment in the second degree,reckless driving and criminal mischief in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by vacating the sentence andas modified the judgment is affirmed, and the matter is remitted to Ontario County Courtfor further proceedings in accordance with the following memorandum: Defendantappeals from a judgment convicting him upon a jury verdict of, inter alia, assault in thesecond degree (Penal Law § 120.05 [3]). The case arose from an incident inwhich the police attempted to arrest defendant pursuant to an arrest warrant issued by theState of Pennsylvania for absconding from parole supervision. When the policeapproached and identified themselves, defendant led them in a foot pursuit that circled anapartment building until defendant got in his pickup truck. One of the officers who hadbeen in pursuit arrived at defendant's vehicle, ordered him to exit and slammed his radioagainst the window intending to break the glass and stop defendant's escape. With theofficer still holding onto the vehicle's door handle, defendant accelerated quickly anddrove away, sending the officer into the air and then onto the ground.
We reject defendant's contention that his conviction of assault in the second degree isnot supported by legally sufficient evidence that the officer sustained physical injury,which is defined as "impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). " '[S]ubstantial pain' cannot be defined precisely, but itcan be said that it is more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]). Here,witnesses of the incident testified that the officer was thrown airborne and dragged by thevehicle, and one witness testified that she was surprised that the officer was able to getup after the incident. The officer described that the pain was "tremendous," "significant,"and "severe." The medical records that were admitted in evidence established that theofficer went to urgent care the day after the incident and was evaluated for multiplecontusions and soft tissue hematoma to the right hip and right knee, acute neck painassociated with cervical sprain, acute cervical strain, acute traumatic thoracic and lumbarback pain, sprain of the left hamstring and possible hamstring tear, multiple superficialabrasions, and sprain of the right lateral collateral ligament. At that time, he described hispain as a 5 out of 10, but 8 out of 10 with movement and activity. He was prescribedibuprofen 600 mg tablets, and was instructed to remain out of work for five days and toavoid strenuous activity. Six days later at a follow-up appointment, the officer notedimprovement, but still expressed problems and pain in his right knee, left hamstring, righthip, and neck/upper back. At the follow-up appointment, the officer reported that hispain and stiffness initially got worse after the urgent care visit and gradually there hadbeen improvement. Although there had been improvement and some negative test results,the officer's range of [*2]motion was found to be limitedin his back and the physician concluded that he was not yet ready to return to work fullduty. Instead, the physician noted that the officer should be able to return to work thefollowing week. We conclude that the evidence is sufficient to establish that the officersustained physical injury (seePeople v Talbott, 158 AD3d 1053, 1054 [4th Dept 2018], lv denied 31NY3d 1088 [2018]). Viewing the evidence in light of the elements of assault in thesecond degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's further contention that the verdict is against the weight of the evidenceon the issue of physical injury (see generally People v Bleakley, 69 NY2d 490,495 [1987]).
Contrary to defendant's contention, defense counsel's failure to object to the allegedinstance of prosecutorial misconduct during summation did not constitute ineffectiveassistance of counsel inasmuch as the prosecutor's summation was within "the broadbounds of rhetorical comment permissible" (People v McEathron, 86 AD3d 915, 916 [4th Dept 2011],lv denied 19 NY3d 975 [2012] [internal quotation marks omitted]; see People v Jones, 155 AD3d1547, 1548-1549 [4th Dept 2017], amended on rearg 156 AD3d 1493 [4thDept 2017]), and "any improper comments made by the prosecutor on summation wereisolated and not so egregious that defendant was deprived of a fair trial" (People v Grant, 160 AD3d1406, 1407 [4th Dept 2018], lv denied 31 NY3d 1148 [2018]). We similarlyreject defendant's contention that defense counsel was ineffective for failing to requestthat the court charge the jury with the lesser included offense of obstructinggovernmental administration in the second degree inasmuch as "there is no reasonableview of the evidence to support a finding that defendant committed obstructinggovernmental administration in the second degree but not assault in the second degree"(People v Acevedo, 118AD3d 1103, 1107 [3d Dept 2014], lv denied 26 NY3d 925 [2015]; see generally People vCalderon, 66 AD3d 314, 320 [1st Dept 2009], lv denied 13 NY3d 858[2009]).
We agree with defendant, however, that he was improperly sentenced as a secondfelony offender inasmuch as the predicate conviction, i.e., the Pennsylvania crime ofburglary (18 Pa Cons Stat § 3502), is not the equivalent of a New Yorkfelony. Although defendant failed to preserve that contention for our review (see People v Hall, 149 AD3d1610, 1610 [4th Dept 2017]), we exercise our power to address it as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Upon our review ofPennsylvania statutory and case law, "there is no element in the Pennsylvania statutecomparable to the element in the analogous New York statute that an intruder'knowingly' enter or remain unlawfully in the premises . . . [and t]he absenceof this scienter requirement from the Pennsylvania burglary statute renders improper theuse of the Pennsylvania burglary conviction as the basis of the defendant's predicatefelony adjudication" (People vFlores, 143 AD3d 840, 840 [2d Dept 2016]; see generally People v Helms, 30 NY3d 259, 263-264[2017]). We therefore modify the judgment by vacating the sentence, and we remit thematter to County Court to resentence defendant (see People v Nieves-Rojas, 126 AD3d 1373, 1373-1374[4th Dept 2015]). In light of our determination, defendant's remaining contentionregarding the severity of the sentence is moot (see id. at 1374).Present—Whalen, P.J., Smith, DeJoseph and Troutman, JJ.