People v. Dunham

• Decision Date: 24 December 2020
• Docket Number: 2018-1779 S CR
• Citation: 135 N.Y.S.3d 764 (Table),70 Misc.3d 132 (A)
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas DUNHAM, Appellant.
• Court: New York Supreme Court — Appellate Term

70 Misc.3d 132 (A)

135 N.Y.S.3d 764 (Table)

The PEOPLE of the State of New York, Respondent,

v.Thomas DUNHAM, Appellant.

2018-1779 S CR

Supreme Court, Appellate Term, New York.

Decided on December 24, 2020

Christopher Ross, for appellant.

Suffolk County District Attorney (Nicole L. Gallo of counsel), for respondent.

PRESENT: BRUCE E. TOLBERT, J.P., THOMAS A. ADAMS, JERRY GARGUILO, JJ.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged, in separate accusatory instruments, with resisting arrest ( Penal Law § 205.30 ) and obstructing governmental administration in the second degree ( Penal Law § 195.05 ), respectively. Defendant moved to dismiss the accusatory instrument charging him with the latter offense, arguing that the accusatory instrument was jurisdictionally defective. The Justice Court denied defendant's motion. After a jury trial, defendant was convicted of obstructing governmental administration in the second degree. Defendant's subsequent motion to set aside the verdict was denied, and the Justice Court thereafter sentenced defendant to three years' probation with special alcohol conditions, a $250 fine and a $205 surcharge. Defendant now appeals.

We first address defendant's challenge to the facial sufficiency of the accusatory instrument charging him with obstructing governmental administration in the second degree. To be legally sufficient, the factual portion of an information must contain "facts of an evidentiary character" ( CPL 100.15 [3] ; see CPL 100.40 [1] [a] ) that provide "reasonable cause to believe that the defendant committed the offense charged" ( CPL 100.40 [1] [b] ) and "[n]on-hearsay allegations [which], if true, [establish] every element of the offense charged and the defendant's commission thereof" ( CPL 100.40 [1] [c] ; see People v. Barnes , 26 NY3d 986, 990 [2015] ; People v. Matthew P. , 26 NY3d 332, 335 [2015] ). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" ( People v. Casey , 95 NY2d 354, 360 [2000] [citations omitted]; accord People v. Kalin , 12 NY3d 225, 230 [2009] ; People v. Konieczny , 2 NY3d 569, 575 [2004] ). Furthermore, since proof of states of mind, such as guilty knowledge or intent, are normally based upon circumstantial evidence (see e.g. People v. Johnson , 65 NY2d 556, 561 [1985] ; People v. Mackey , 49 NY2d 274, 279 [1980] ), for pleading purposes, the requisite mental state may be alleged on the basis of a logical inference from the act itself or upon the surrounding circumstances (see People v. Kwas , 52 Misc 3d 52, 54 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v. Bishop , 41 Misc 3d 144[A], 2013 NY Slip Op 52063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v. Prevete , 10 Misc 3d 78, 80 [App Term, 2d Dept, 9th & 10th Jud Dists 2005] ). Contrary to defendant's contention, the accusatory instrument charging defendant with obstructing governmental administration in the second degree was facially sufficient.

Defendant's contention that the Justice Court erred in admitting into evidence a surveillance video depicting the incident is only partially preserved for appellate review (see CPL 470.05 [2] ), as defense counsel made no reference at trial to whether the video was properly authenticated (see People v. Prince , 128 AD3d 987, 987 [2015] ). In any event, the surveillance video was properly authenticated by a detective who testified that she personally downloaded the video from the surveillance system at the scene to a DVD disc, indicated that the surveillance system was in operation, testified that the date and time on the video were accurate, and testified to the unaltered condition of the video (see People v. Grant , 170 AD3d 888, 890 [2019] ; see also People v. Martinez , 164 AD3d 1260, 1262-1263 [2018] ; cf. Torres v. Hickman , 162 AD3d 821, 823 [2018] ). Contrary to defendant's argument, admission of the silent surveillance video into evidence did not violate the rule against hearsay, as it is not assertive in nature (see People v. Clyburn , 56 Misc 3d 1204[A], 2017 NY Slip Op 50866[U] [Crim Ct, NY County 2017] ; Guide to NY Evid rule 8.00 [3], Definition of Hearsay ["A statement of the declarant may be written or oral, or non-verbal, provided the verbal or non-verbal conduct is intended as an assertion"]; cf. United States v. Armone , 363 F2d 385, 404 [2d Cir 1966] ["A photograph is not an out-of-court statement at all"] ). Therefore, the Justice Court did not improvidently exercise its discretion in admitting the surveillance video.

To the extent that defendant is challenging the legal sufficiency of the evidence to establish his guilt of obstructing governmental administration in the second degree ( Penal Law § 195.05 ), the claim is unpreserved for appellate review, since defendant failed to make any argument to this effect during the trial (see CPL 470.05 [2] ; People v. Hawkins , 11 NY3d 484, 492 [2008] ; People v. Gray , 86 NY2d 10, 19-20 [1995] ). In any event, defendant's claim lacks merit. Moreover, upon the exercise of...