People v. Sekoll

• Decision Date: 02 October 1998
• Citation: 254 A.D.2d 797,679 N.Y.S.2d 225
• Parties: 1998 N.Y. Slip Op. 8189 PEOPLE of the State of New York, Respondent, v. Carlton SEKOLL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 225

679 N.Y.S.2d 225

1998 N.Y. Slip Op. 8189

PEOPLE of the State of New York, Respondent, v. Carlton SEKOLL, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Oct. 2, 1998.

John Cirando, Syracuse, for Appellant.

John Tunney, Bath, for Respondent.

Before DENMAN, P.J., GREEN, WISNER, BALIO and FALLON, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him of assault in the second degree (Penal Law § 120.05[3] ), criminal possession of a weapon in the fourth degree (Penal Law § 265.01) and resisting arrest (Penal Law § 205.30). He contends that, because the People failed to establish that the State Trooper had probable cause to arrest him, the verdict with respect to assault in the second degree and resisting arrest is not supported by legally sufficient evidence that the State Trooper was performing a lawful duty when he was assaulted by defendant or that he was authorized to arrest defendant. We disagree. The standard for reviewing the legal sufficiency of evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt (see, People v. Ficarrota, 91 N.Y.2d 244, 248-249, 668 N.Y.S.2d 993, 691 N.E.2d 1017; People v. Chico, 90 N.Y.2d 585, 588-589, 665 N.Y.S.2d 5, 687 N.E.2d 1288; People v. Williams, 84 N.Y.2d 925, 620 N.Y.S.2d 811, 644 N.E.2d 1367). An identified citizen informed the State Trooper that he had been assaulted by defendant, and he identified an approaching pickup truck as belonging to the assailant. Defendant was driving the vehicle, and the other occupants were a woman and a 15-year-old child. Based on that information, the police had probable cause to arrest defendant (see, Pomento v. City of Rome, 231 A.D.2d 875, 876, 647 N.Y.S.2d 604; People v. Newton, 180 A.D.2d 764, 580 N.Y.S.2d 397).

We reject defendant's further contentions that the verdict with respect to assault in the second degree is not supported by legally sufficient evidence that the State Trooper suffered a physical injury within the meaning of Penal Law § 10.00(9) and § 120.05(3) and that defendant caused that injury. The State Trooper testified that, after struggling and wrestling with defendant for 3 to 5 minutes, he felt pain in his left arm as defendant pulled away from him, that the pain in his left arm and shoulder worsened and that he sought treatment at the hospital. He was unable to do anything for the first two days after the incident. He was out of work for a week to 10 days, returning when his doctor permitted him to do so. He took prescribed muscle relaxants and pain killers and wore a sling on his left arm for three or four days. That evidence is legally sufficient to establish that defendant caused an "impairment of physical condition" within the meaning of Penal Law § 10.00(9) (see, People v. Curry, 199 A.D.2d 528, 605 N.Y.S.2d 410, lv. denied 83 N.Y.2d 870, 613 N.Y.S.2d 131, 635 N.E.2d 300; People v. Moise, 199 A.D.2d 423, 605 N.Y.S.2d 345; People v. Soto, 184 A.D.2d 673, 584 N.Y.S.2d 877, lv. denied 80 N.Y.2d 910, 588 N.Y.S.2d 835, 602 N.E.2d 243).

With respect to the conviction of criminal possession of a weapon in the fourth degree, the evidence is legally sufficient to establish that defendant intended to use a chain saw in an unlawful manner. Lastly, with respect to the conviction of resisting arrest, the evidence, viewed in the light most favorable to the People, establishes that defendant was aware that he was being arrested (see, People v. Gray, 189...