People v. Johnson

• Decision Date: 11 May 2017
• Citation: 150 A.D.3d 1390,53 N.Y.S.3d 412
• Parties: The PEOPLE of the State of New York, Respondent, v. Jermaine JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1390
53 N.Y.S.3d 412

The PEOPLE of the State of New York, Respondent,
v.
Jermaine JOHNSON, Appellant.

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

May 11, 2017.

53 N.Y.S.3d 414

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), for respondent.

Before: PETERS, P.J., GARRY, DEVINE, MULVEY and AARONS, JJ.

GARRY, J.

Appeals (1) from a judgment of the Supreme Court (McDonough, J.), rendered May 2, 2013 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of marihuana in the first degree, assault in the second degree, unlawful fleeing from a police officer in a motor vehicle in the third degree, reckless driving and resisting arrest, and (2) from a judgment of said court, rendered August 28, 2013 in Albany County, which resentenced defendant on his conviction of assault in the second degree.

A state trooper stopped defendant's vehicle after seeing him change lanes illegally. Upon smelling marihuana, the trooper directed defendant to get out of the car,

53 N.Y.S.3d 415

and defendant did so. When the trooper told him that he intended to search the vehicle, defendant charged the trooper, punched him in the head and fled in the vehicle. A car chase ensued in which defendant traveled at speeds over 100 miles per hour, ran red lights, nearly caused several accidents and ultimately crashed into several parked cars. Defendant then fled on foot and was caught and arrested after a struggle with several pursuing officers. A search of his vehicle revealed a bag containing what was later identified as over 10 pounds of marihuana. Defendant was charged with several crimes and, following a jury trial, convicted of criminal possession of marihuana in the first degree, assault in the second degree, unlawful fleeing from a police officer in a motor vehicle in the third degree, reckless driving and resisting arrest. He was sentenced to an aggregate prison term of 4½ years with three years of postrelease supervision. Defendant appeals.

Before trial, the People moved to preclude defendant from cross-examining the trooper about a previous reprimand. Defendant opposed the motion, arguing that he was entitled under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to disclosure of that part of the trooper's personnel records pertaining to the reprimand so that he could determine whether it was relevant to his cross-examination. When Supreme Court inquired as to the factual basis for this request, defense counsel stated that the request was based on "gossip among defense lawyers" and upon a transcript of the trooper's testimony in a prior case, in which he confirmed that he had previously been reprimanded for a reason unspecified, other than that it did not relate to search and seizure. Supreme Court did not find this to constitute an adequate basis for disclosure, and declined to direct the People to turn over the records.

The personnel records of police officers, including documents pertaining to misconduct or violations of rules, are confidential and are not subject to inspection or review, as pertinent here, "except as may be mandated by lawful court order" (Civil Rights Law § 50–a [1 ]; see Matter of Prisoners' Legal Servs. of N.Y. v. New York State Dept. of Correctional Servs., 73 N.Y.2d 26, 31–32, 538 N.Y.S.2d 190, 535 N.E.2d 243 [1988] ). Upon "a clear showing of facts sufficient to warrant ... review," a judge may issue an order directing the records to be sealed and sent to the judge for an in camera review, after which the judge shall order disclosure of any records found to be relevant and material (Civil Rights Law § 50–a [2 ]; see Civil Rights Law § 50–a [3 ] ). Defendant now argues that Supreme Court erred in failing to conduct such an in camera review. However, it is conceded that counsel failed to request such a review at trial, and instead asked only that Supreme Court order the records to be turned over directly. To the limited extent that the request may nevertheless be deemed preserved, it has not been shown that in camera review was warranted, given defendant's failure to show a good faith factual predicate for the request (see People v. Darrell, 145 A.D.3d 1316, 1319–1320, 45 N.Y.S.3d 223 [2016] ; Matter of Dunnigan v. Waverly Police Dept., 279 A.D.2d 833, 834, 719 N.Y.S.2d 399 [2001], lv. denied 96 N.Y.2d 710, 727 N.Y.S.2d 696, 751 N.E.2d 944 [2001] ; see also People v. Gissendanner, 48 N.Y.2d 543, 550–551, 423 N.Y.S.2d 893, 399 N.E.2d 924 [1979] ).

Supreme Court did not commit reversible error by denying defendant's challenge for cause on the ground that a juror's "state of mind [was] likely to preclude [her] from rendering an impartial verdict based upon the evidence adduced

53 N.Y.S.3d 416

at the trial" (CPL 270.20[1][b] ). During voir dire, the juror stated that, several years previously, she had called the police after seeing a man assault a woman and throw her to the ground. Asked whether anything about this experience would affect her judgment in defendant's case, the juror initially expressed some uncertainty. However, after further colloquy with counsel and the court, she stated that she was comfortable serving on the jury, confirmed that the previous experience would not affect her ability to evaluate the evidence, and repeatedly affirmed without equivocation that she would be able to be fair and impartial. These unambiguous assurances were sufficient to "dispel any doubt as to equivocation [and] assure an impartial jury" (People v. Chambers, 97 N.Y.2d 417, 419, 740 N.Y.S.2d 291, 766 N.E.2d 953 [2002] ; see People v. Warrington, 28 N.Y.3d 1116, 1120–1121, 45 N.Y.S.3d 345, 68 N.E.3d 70 [2016] ; People v. Williams, 63 N.Y.2d 882, 884–885, 483 N.Y.S.2d 198, 472 N.E.2d 1026 [1984] ).

Next, defendant contends that the trial evidence was legally insufficient and that the verdict is against the weight of the evidence, in that the conviction for assault in the second degree was not supported by evidence that the trooper was physically injured, and the conviction for criminal possession of marihuana in the first degree was not supported by evidence that the weight of the marihuana was accurately determined. The Penal Law defines physical injury for this purpose as an "impairment of physical condition or substantial pain" (Penal Law § 10.00[9] ). Substantial pain, in turn, "must be more than slight or trivial but need not be severe or intense" (People v. Hicks, 128 A.D.3d 1221, 1222, 9 N.Y.S.3d 474 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [2015] [internal quotation marks and citations omitted] ). The trooper testified that defendant was sitting on the bumper of the patrol car and the trooper was about six feet away, between defendant and his vehicle, when the trooper informed defendant that his vehicle would be searched. Defendant then got up with a "crazed, dazed look in his eye," ran toward the trooper and punched him in the side of the head, sending the trooper into the guide rail. The trooper stated that he saw a brief flash of light when he was struck, but did not lose consciousness. After defendant's arrest, the trooper went to the emergency room because of a headache, pain and "tenderness" in his head. He was diagnosed with a concussion and instructed to stay out of work until his symptoms abated.¹ For several days, he had what he described as a "substantial headache," which made it difficult to sleep and to lie down. He testified that he took Tylenol and Advil for pain, and that he also lost his appetite for several days.

The treating emergency room physician testified that the trooper complained of head trauma, headache and having seen a flash of light upon impact. The physician described the diagnosis of a concussion as "straightforward," stating that radiological findings were not required and that the trooper's symptoms of head trauma and persistent headache "by definition ... make the diagnosis." The physician stated that a primary concern following a concussion is to avoid the risk of a second head injury, known as second impact syndrome, and that the trooper was directed to stay out of work for this reason until his symptoms were gone. He further stated that the flash of light seen by the trooper was a

53 N.Y.S.3d 417

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