People v. Krut

• Decision Date: 18 November 2015
• Citation: 133 A.D.3d 781,21 N.Y.S.3d 106
• Parties: The PEOPLE, etc., respondent, v. Pavel KRUT, appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 781
21 N.Y.S.3d 106

The PEOPLE, etc., respondent,
v.
Pavel KRUT, appellant.

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

Nov. 18, 2015.

21 N.Y.S.3d 107

Jeremy Gutman, New York, N.Y., for appellant.

Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Paul M. Tarr of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JOSEPH J. MALTESE, JJ.

133 A.D.3d 781

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J., at trial; Rienzi, J., at sentence), rendered December 11, 2014, convicting him of assault in the second degree, resisting arrest, and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of driving while intoxicated, vacating the sentence imposed thereon, and remitting the matter to the Supreme Court, Richmond County, for a new trial as to that count of the indictment; as so modified, the judgment is affirmed.

At about 2:00 a.m. on April 1, 2012, two police officers pulled over a vehicle driven by the defendant after he disregarded a yield sign, changed lanes without signaling, and stopped at a green light for up to 25 seconds. After observing the defendant's demeanor and detecting the odor of alcohol, one of the officers asked the defendant to blow into a portable breath test device (hereinafter PBT). The officer later testified

21 N.Y.S.3d 108

that, according to the PBT, the defendant's blood alcohol content (hereinafter BAC) was .128%, which is above the legal limit of .08%. The officer allowed the defendant to call a relative in order to secure the vehicle. When that relative arrived at the scene, the defendant exited his vehicle and announced that he was leaving with his relative. At that point, one of the officers attempted to handcuff the defendant. However, the defendant resisted arrest and, after a prolonged struggle between the defendant and the two officers at the scene, the defendant was arrested and charged with assault in the second degree, resisting arrest, and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3) under a theory of common-law intoxication.

Prior to opening statements at the defendant's jury trial, the parties noted that evidence regarding the results of the PBT

133 A.D.3d 782

administered prior to the defendant's arrest was not going to be admitted at trial. The prosecutor did not mention the PBT evidence in his opening statement. However, in his opening statement, defense counsel, referring to a video of the incident taken from the patrol car, stated that one of the officers administered a PBT and then disposed of "the cap" or "whatever" after the defendant blew into it. Based on defense counsel's opening statement, which implied that the officer disposed of the PBT device, the trial court allowed the People to present evidence on their case-in-chief that, according to the PBT, the defendant's BAC result was .128%, higher than the legal limit of .08%. Additionally, one of the police officers testified that, when he stopped the defendant's vehicle, he could smell the odor of alcohol coming from the defendant's breath, the defendant's face was flushed, his speech was slurred, and his eyes were bloodshot.

The People further elicited testimony that the defendant was uncooperative throughout the stop, notwithstanding that the officers allowed him to make two phone calls before he exited his vehicle and to ask his relative to come to their location to pick up the vehicle. Upon exiting the vehicle, the defendant indicated that he was leaving the scene and going home with his relative. When one of the police officers attempted to handcuff the defendant, a struggle ensued. During the struggle, one of the officers sustained a laceration to the bridge of his nose, which required treatment with "medical glue," and left a scar that was still visible at the time of trial. The police officer also sustained a torn rotator cuff in the struggle, and was on sick leave for several weeks. The People submitted a video of the incident taken from the patrol car, which was played for the jury.

As part of his defense, the defendant took the stand and testified that he did not have anything to drink that night. The defendant further testified that the police officers did not tell him that he was being arrested, that he could not imagine why this incident happened, and otherwise suggested that he did not understand that he was being arrested for an offense. Defense counsel later argued that the defendant did not realize that he was being arrested. During the charge conference, defense counsel argued that the trial court should not include any references to the PBT in the jury charge regarding the offense of driving while intoxicated; the court denied the application. The jury found the defendant guilty of assault in the second degree, resisting arrest, and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3) under a theory of common-law intoxication. The defendant appeals.

21 N.Y.S.3d 109

133 A.D.3d 783

The defendant's challenge to the legal sufficiency of the evidence is only partially preserved for appellate review. In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of each charge beyond a reasonable doubt (see People v. Tejeda, 78 N.Y.2d 936, 573 N.Y.S.2d 633, 578 N.E.2d 431 ; People v. Lundell, 24 A.D.3d 569, 570, 806 N.Y.S.2d 685 ; People v. Galvin, 253 A.D.2d 437, 438, 676 N.Y.S.2d 626 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633,...