People v. Poulos

• Decision Date: 23 November 2016
• Citation: 43 N.Y.S.3d 148,144 A.D.3d 1389,2016 N.Y. Slip Op. 07879
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyson POULOS, Appellant.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1389

43 N.Y.S.3d 148

2016 N.Y. Slip Op. 07879

The PEOPLE of the State of New York, Respondent,

v.Tyson POULOS, Appellant.

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

Nov. 23, 2016.

Paul J. Connolly, Delmar, for appellant, and appellant pro se.

Kathleen B. Hogan, District Attorney, Lake George (Matthew D. Burin of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, DEVINE, MULVEY and AARONS, JJ.

LYNCH, J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered August 13, 2014, upon a verdict convicting defendant of the crime of aggravated harassment of an employee by an inmate (two counts).

In January 2014, defendant, an inmate, flooded his cell by repeatedly flushing the toilet. He also defecated and urinated on the cell floor. When correction officers responded, defendant allegedly kicked the pooled toilet water onto two of the officers. Defendant was charged with two counts of aggravated harassment of an employee by an inmate. Following a jury trial, he was convicted as charged and sentenced as a second felony offender to consecutive prison terms of 2 ½ to 5 years. Defendant appeals.

Initially, we reject defendant's contention that County Court erred in denying his motion to dismiss the indictment as multiplicitous for the two counts related to different victims (see People v. Kindlon, 217 A.D.2d 793, 794–795, 629 N.Y.S.2d 827 [1995], lv. denied 86 N.Y.2d 844, 634 N.Y.S.2d 453, 658 N.E.2d 231 [1995] ; compare People v. Hoffman, 130 A.D.3d 1152, 1154, 13 N.Y.S.3d 619 [2015], lv. denied 26 N.Y.3d 1009, 20 N.Y.S.3d 549, 42 N.E.3d 219 [2015] ).

Next, defendant maintains that the indictment was legally insufficient in that the alleged act of "kicking" the toilet water is not proscribed by the statute. We disagree. Aggravated harassment of an employee by an inmate requires that an inmate, "with intent to harass, annoy, threaten or alarm a person in a facility whom he or she knows or reasonably should know to be an employee of such facility ..., causes or attempts to cause such employee to come into contact with blood, seminal fluid, urine, feces, or the contents of a toilet bowl, by throwing, tossing or expelling such fluid or material" (Penal Law § 240.32 [emphasis added] ). We have previously recognized that the statute prohibits specific conduct limited to "throwing, tossing or expelling" the listed substances and, by doing so, "the Legislature limited criminalization to contact through those methods and excluded other methodologies" ( People v. Polanco, 2 A.D.3d 1154, 1155, 770 N.Y.S.2d 167 [2003] ).¹ The dispute thus centers on whether the act of "kicking" falls within the scope of "expelling" as prohibited by the statute. Absent a controlling statutory definition, as here, words in a statute should be given their ordinary meaning (see McKinney's Cons Law of N.Y., Book 1, Statutes § 232; People v. Finley, 10 N.Y.3d 647, 654, 862 N.Y.S.2d 1, 891 N.E.2d 1165 [2008] ; People v. Cruz, 48 N.Y.2d 419, 428, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979], lv. dismissed 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254 [1980] ). "Expel" is defined as "[t]o drive out or away; to eject, esp. with force" (Black's Law Dictionary [10th ed 2014], expel). In People v. Stokes, 290 A.D.2d 71, 736 N.Y.S.2d 781 [2002], lv. denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369 [2002], cert. denied 537 U.S. 859, 123 S.Ct. 230, 154 L.Ed.2d 97 (2002), we previously upheld a conviction under this statute where the defendant was alleged to have projected a bodily fluid on a correction employee by spraying the substance. While the spray container was not located in the ensuing cell search, we referenced the use of a container "to expel the substance" (id. at 73, 736 N.Y.S.2d 781 ). Following this application, we conclude that defendant's act of kicking the water, and projecting same onto the correction officers, constitutes "expelling" the water within the embrace of the statute.

Next, defendant maintains that the verdict was against the weight of the evidence in view of discrepancies in the testimony of the correction officers as to how the event occurred. There is no dispute here as to defendant's flooding and soiling the cell floor. Defendant's contention is that the evidence fails to establish that he kicked the water onto the clothing of the two correction officers. When, as here, a different result would not have been unreasonable, we consider the rational inferences that could be drawn from the testimony presented and view such testimony in a neutral light, giving due deference to the jury's credibility determinations (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Smith, 96 A.D.3d 1088, 1089, 945 N.Y.S.2d 800 [2012], lv. denied 20 N.Y.3d 935, 957 N.Y.S.2d 695, 981 N.E.2d 292 [2012] ). At the time of the incident, defendant was under a constant supervision watch monitored by Matthew Hubbard, a correction officer. After defendant flooded his cell, several correction officers responded to assist Hubbard, including Charlene Maday and Dustin Spring. The incident occurred as Maday and Spring backed out of defendant's cell. The pivotal question is whether or not the cell door was closed or open when defendant kicked the water, and, if the latter, to what degree.

The gap between the door and the floor was 2 ? inches. In the area outside of the cell, the officers had spread towels to block the flow of water down the hallway. Hubbard testified that defendant kicked the water toward Spring and Maday as they were backing out of the cell. On cross-examination, however, Hubbard was impeached by his grand jury testimony in which he stated that the cell door was closed behind the officers before the kicking began. Maday testified that the door was almost closed when defendant kicked the water, which came out from under the door, came over the towels and landed on the bottom half of her pants and boots as well as on Spring. A video of the incident, according to Maday, showed her looking down at her pants after the water hit her clothing. Weighing this testimony and giving due deference to the jury's credibility assessment, we cannot say that the verdict was against the weight of the evidence (see People v. Smith, 96 A.D.3d at 1089, 945 N.Y.S.2d 800 ; People v. Figueroa, 53 A.D.3d 779, 780, 861 N.Y.S.2d 216 [2008], lv. denied 11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ; People v. Merrill, 27 A.D.3d 773, 774, 810 N.Y.S.2d 249 [2006], lv. denied 6 N.Y.3d 896, 817 N.Y.S.2d 631, 850 N.E.2d 678 [2006] ).

We do find that County Court erred in denying defendant's request to represent himself at trial. It is settled that "[a] defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues" (People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322 [1974] ; see People v. Gilbo, 52 A.D.3d 952, 954–955, 859 N.Y.S.2d 521 [2008], lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ). Here, the record establishes that defendant clearly and unequivocally asserted his right to represent himself prior to the start of a suppression hearing one week before the trial began. At that point, County Court was required to "conduct a thorough inquiry to determine whether the waiver was made intelligently and voluntarily" (People v. Smith, 68 N.Y.2d 737, 738, 506 N.Y.S.2d 322, 497 N.E.2d 689 [1986], cert. denied 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 [1986] ). In doing so, the court "should undertake a sufficiently searching inquiry in order to be reasonably certain that a defendant appreciates the dangers and disadvantages of giving up the fundamental right to counsel" (People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 705 N.E.2d 1205 [1998] [internal quotation marks and citations omitted]; see People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002] ; People v. Dashnaw, 116 A.D.3d 1222, 1230–1231, 983 N.Y.S.2d 681 [2014], lv. denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ).

Our review of the record shows County Court inquired into defendant's background, emphasized the importance of...