People v. Nisselbeck

CourtNew York Supreme Court Appellate Division
Citation923 N.Y.S.2d 801,2011 N.Y. Slip Op. 04548
PartiesThe PEOPLE of the State of New York, Respondent,v.Danielle NISSELBECK, Appellant.
Decision Date02 June 2011

923 N.Y.S.2d 801
2011 N.Y. Slip Op. 04548

The PEOPLE of the State of New York, Respondent,
v.
Danielle NISSELBECK, Appellant.

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

June 2, 2011.


[923 N.Y.S.2d 802]

Matthew C. Hug, Troy, for appellant.P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.Before: MERCURE, J.P., SPAIN, KAVANAGH, STEIN and GARRY, JJ.MERCURE, J.P.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 23, 2009, upon a verdict convicting defendant of the crimes of assault in the second degree and obstructing governmental administration in the second degree.

In the early morning hours of February 1, 2009, defendant, some friends and her brothers—Jakeb Nisselbeck and codefendant Justin Nisselbeck—were celebrating her birthday on Lark Street in the City of Albany. Jakeb Nisselbeck had a physical altercation with an acquaintance of the group, which dispersed after police officers James Kittleman, Thomas Mahar and William Norris arrived on the scene. Shortly after 3:00 A.M., another fight broke out between the same individuals, and Norris and Mahar again responded. Mahar directed the group, all of whom were highly intoxicated, to go home.

James Hoffman, a friend of Jakeb Nisselbeck, became belligerent and put his hands on Mahar, who told Hoffman he was under arrest. When defendant—who was also admittedly intoxicated—allegedly attempted to prevent the arrest by pushing Mahar, Norris shoved defendant off to the side. Defendant claimed that Justin Nisselbeck then exited a bar and asked the officers what was happening, to which Norris responded by directing a homosexual slur at Justin and punching him in the face. In contrast, the officers asserted that Justin punched Norris in the face after Norris pushed defendant off Mahar, and Norris responded by punching Justin back.

At that point, Jakeb Nisselbeck tried to tackle Mahar and defendant allegedly began scratching at Norris's face. Several more punches were thrown before Norris, Mahar and additional officers subdued Hoffman and the Nisselbeck brothers, and an employee of the bar restrained defendant. At Norris's request, Officer Gregory Mulligan approached defendant to arrest her. Defendant, who admitted that she was flailing and made contact with Mulligan, kicked him in the groin. Mulligan then allegedly punched defendant, brought her to the ground and arrested her as she screamed, cursed and kicked. Eventually, the entire group was handcuffed and placed into a van for transport to the police station for processing.

Defendant and Justin Nisselbeck were thereafter charged in an indictment with various crimes. Following a joint trial, Justin was acquitted, and defendant was found guilty of obstructing governmental administration in the second degree and assault in the second degree. She was subsequently sentenced to a conditional discharge for the conviction of obstructing governmental administration, and to four years in prison with two years of postrelease supervision for her conviction of assault in the second degree. Defendant appeals.

Initially, we reject defendant's argument that her conviction for assault in the second degree was against the weight of the evidence.1 As charged herein, “[a]

[923 N.Y.S.2d 803]

person is guilty of assault in the second degree when ... [w]ith intent to prevent a ... police officer ... from performing a lawful duty, ... he or she causes physical injury to such ... police officer” ( Penal Law § 120.05[3] ). Physical injury is defined as “impairment of physical condition or substantial pain” ( Penal Law § 10.00 [9] ). Defendant was charged in the third count of the indictment with assault in the second degree based upon her conduct in kicking Mulligan in the groin. She asserts that the People failed to establish that Mulligan sustained a physical injury. We disagree.

The “substantial pain” required by Penal Law § 10.00(9) “is more than slight...

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11 cases
  • People v. Acevedo
    • United States
    • New York Supreme Court — Appellate Division
    • 12 Junio 2014
    ...could not commit the greater without concomitantly committing the lesser crime ( see People v. Nisselbeck, 85 A.D.3d 1206, 1208, 923 N.Y.S.2d 801 [2011] ). As County Court properly concluded, [987 N.Y.S.2d 665]however, there is no reasonable view of the evidence to support a finding that de......
  • People v. Diaz
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Junio 2018
    ...N.Y.3d at 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ; see People v. Hicks, 128 A.D.3d at 1222, 9 N.Y.S.3d 474 ; People v. Nisselbeck, 85 A.D.3d 1206, 1207–1208, 923 N.Y.S.2d 801 [2011] ). The evidence at trial established that defendant stabbed the unsuspecting victim in the left temple and le......
  • People v. Serrano
    • United States
    • New York Supreme Court — Appellate Division
    • 16 Diciembre 2021
    ...support a finding that the defendant committed the lesser offense but not the greater’ " ( People v. Nisselbeck, 85 A.D.3d 1206, 1208, 923 N.Y.S.2d 801 [2011], quoting People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 [1995] ). Here, although it is impossible to......
  • People v. Tucker
    • United States
    • New York Supreme Court — Appellate Division
    • 7 Julio 2016
    ...a lawful duty, ... he or she causes physical injury to such ... police officer’ ” (People v. Nisselbeck, 85 A.D.3d 1206, 1207, 923 N.Y.S.2d 801 [2011], quoting Penal Law § 120.05[3] ; accord People v. McLean, 128 A.D.3d 1106, 1107, 8 N.Y.S.3d 696 [2015], lv. denied 25 N.Y.3d 1204, 16 N.Y.S.......
  • Request a trial to view additional results

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