People v. Hurdle

• Decision Date: 29 May 2013
• Citation: 965 N.Y.S.2d 626,106 A.D.3d 1100,2013 N.Y. Slip Op. 03849
• Parties: The PEOPLE, etc., respondent, v. Walter HURDLE, appellant.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1100
965 N.Y.S.2d 626
2013 N.Y. Slip Op. 03849

The PEOPLE, etc., respondent,
v.
Walter HURDLE, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 29, 2013.

[965 N.Y.S.2d 628]

Lynn W. L. Fahey, New York, N.Y. (Jonathan M. Kratter of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Daniel Bresnahan of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

[106 A.D.3d 1101]Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered September 8, 2009, convicting him of assault in the first degree, assault on a police officer, assault in the second degree, and reckless driving, upon a jury verdict, and imposing sentence. By decision and order of this Court dated October 17, 2012, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Queens County, to hear and report on the defendant's challenge to the prosecutor's exercise of a peremptory challenge against a black venireperson ( see People v. Hurdle, 99 A.D.3d 943, 952 N.Y.S.2d 297). The Supreme Court has filed its report.

ORDERED that the judgment is modified, on the law, by vacating the convictions of assault in the first degree and assault on a police officer, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

[965 N.Y.S.2d 629]

The Supreme Court's determination that the explanations provided by the People for exercising a peremptory challenge to a black female venireperson were not pretextual is entitled to great deference on appeal and will not be disturbed since it is supported by the record ( see Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175;Miller–El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931;Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69;People v. Simmons, 79 N.Y.2d 1013, 1015, 584 N.Y.S.2d 423, 594 N.E.2d 917;People v. Scott, 70 A.D.3d 978, 980, 894 N.Y.S.2d 532;People v. Jerome, 49 A.D.3d 556, 557, 851 N.Y.S.2d 885). Nevertheless, for the reasons discussed below, we find that the evidence was legally insufficient to establish the defendant's guilt beyond a reasonable doubt of assault in the first degree and assault on a police officer.

On January 18, 2007, at approximately 8:00 p.m., the defendant was sitting in his legally parked vehicle, a black SUV, when an unmarked police car pulled up to the driver's side of the SUV, and one of the four uniformed officers in the car, Sergeant John Pagnotta, had a brief conversation with the defendant. Unsatisfied with the defendant's answers to his questions, the sergeant directed the officer driving the police car to pull in front of the SUV and park at an angle, blocking the defendant from pulling out of his parking space. The officers then exited the police car and approached the SUV. Sergeant Pagnotta opened the door on the driver's side of the defendant's vehicle; standing between the door and the door jamb, he continued to question the defendant. When Sergeant Pagnotta ordered him to exit the car, the defendant shifted into drive and pressed his foot down on the gas pedal, crashing the SUV into the police car [106 A.D.3d 1102]in front of it and dragging Sergeant Pagnotta, trapped between the door and the door jamb of the SUV. When the SUV pulled away from the police car, Sergeant Pagnotta was released and thrown into the middle of the street, where he was almost hit by an oncoming car. As a result of this incident, Sergeant Pagnotta sustained severe injuries.

Contrary to the People's contention, the defendant's argument regarding the legal sufficiency of his conviction of assault in the first degree is preserved for appellate review ( seeCPL 470.05[2]; People v. Heidgen, 87 A.D.3d 1016, 1020, 930 N.Y.S.2d 199,lv. granted17 N.Y.3d 957, 936 N.Y.S.2d 83, 959 N.E.2d 1032;cf. People v. Hawkins, 11 N.Y.3d 484, 493, 872 N.Y.S.2d 395, 900 N.E.2d 946). A person commits assault in the first degree pursuant to Penal Law § 120.10(3) when, “[u]nder circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person.” “Depraved indifference murder [or assault] differs from intentional murder [or assault] in that it results not from a specific, conscious intent to cause death [or injury], but from an indifference to or disregard of the risks attending defendant's conduct” ( People v. Heidgen, 87 A.D.3d at 1020, 930 N.Y.S.2d 199 [internal quotation marks omitted]; see People v. Feingold, 7 N.Y.3d 288, 293, 819 N.Y.S.2d 691, 852 N.E.2d 1163;People v. Gonzalez, 1 N.Y.3d 464, 467, 775 N.Y.S.2d 224, 807 N.E.2d 273). “ ‘Reflecting wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill [or to cause serious

[965 N.Y.S.2d 630]

physical injury to another person]’ ” ( People v. McMillon, 31 A.D.3d 136, 139, 816 N.Y.S.2d 167, quoting People v. Suarez, 6 N.Y.3d 202, 214, 811 N.Y.S.2d 267, 844 N.E.2d 721). “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created” ( People v. McMillon, 31 A.D.3d at 139, 816 N.Y.S.2d 167). Thus, for example, “a reckless homicide is not elevated to depraved indifference murder solely because the defendant's conduct creates a grave or even an ‘inevitable’...