People v. Sippel

• Decision Date: 25 September 2019
• Docket Number: 2018 - 3800
• Citation: 109 N.Y.S.3d 619,65 Misc.3d 862
• Parties: The PEOPLE of the State of New York v. Michael SIPPEL, Defendant.
• Court: New York City Court

65 Misc.3d 862

109 N.Y.S.3d 619

The PEOPLE of the State of New York

v.Michael SIPPEL, Defendant.

2018 - 3800

City Court, New York, City of Rochester.

Decided September 25, 2019

Gina Clark, ADA, Eric Dolan, Esq., Rochester (Counsel for Mr. Sippel on CPL § 330 motion)

Clark Zimmermann Esq., Rochester (Trial Counsel for Mr. Sippel)

Decision and Order¹

Thomas R. Morse, J.

After a bench trial, suspended Rochester Police Department Officer Michael Sippel was convicted of Assault in the Third Degree.² The charge against Michael Sippel arose as a result of a police/citizen street encounter on May 5, 2018, and over the past sixteen months the body worn camera footage in this case has been the subject of much community discussion and media attention. Following the trial, counsel for the defendant filed the present motion to set aside the verdict under CPL § 330.30(1).

The People filed opposition papers and the Court has heard oral argument. For the reasons which follow, the defendant's motion is denied in all respects.

Parameters for Consideration of this CPL Article 330 Motion

During the period between a guilty verdict and sentencing, a court may consider a motion to "set aside or modify the verdict or any part thereof upon...[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court."³ However,

[t]he power granted a Trial Judge is...far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact, to reverse or modify a judgment when the verdict is against the weight of the evidence, and to reverse as a matter of discretion in the interest of justice. Although the interest of justice power permits an intermediate appellate court to vacate a conviction as to which reversal is not warranted on the law or the facts when there is a grave risk that an innocent man has been convicted, Trial Judges have no such power. Nor are they authorized to set aside a verdict as against the weight of the evidence.⁴

Accordingly, while neither the weight of the evidence presented at trial nor relief in the interest of justice are material to such an application, it is essential in the majority of circumstances that an objection to the purported error be voiced promptly preserving the issue for appellate purposes. Thus, "in order to preserve a claim of error in the admission of evidence or a charge to the jury, a defendant must make his or her position known to the court."⁵

Three justifications for the preservation requirement have been recognized by our highest court. First,

[a] sufficiently specific motion might provide the opportunity for cure before a verdict is reached and a cure is no longer possible. Second, a timely objection alerts all parties to alleged deficiencies in the evidence and advances the truth-seeking purpose of the trial. Third, the timely objection advances the goal of swift and final determinations of the guilt or non-guilt of a defendant.⁶

Failure to object and articulate specific grounds for relief is fatal in all but very select situations.⁷ In this case, the majority of the claims made by defendant's present counsel must fail because no objection was raised at trial. In addition, all of the facts regarding the issues raised by defendant's present counsel are found in the trial record and allegedly occurred during the proceedings in the presence of the court, the prosecutor, the defendant's trial attorney and the defendant. As counsel for the defendant has included a full transcript of the trial in support of his position, there is no need for a hearing on the issues raised.⁸

This Defendant's CPL § 330.30(1) Motion

During oral argument, the court questioned counsel regarding the legal basis for his motion as the preliminary statement in his memorandum of law asserted the "Court's verdict [was] not supported by legally sufficient evidence." Since a trial court cannot vacate a verdict based on alleged insufficiency of the evidence, the court suggested to counsel there might possibly be one narrow avenue leading to the relief requested: a challenge to the court's legal decision denying trial orders of dismissal. The court assumes that is why in the memorandum counsel argued that "even viewing the evidence in a light most favorable to the People," Officer Sippel's actions were justified. Yet, the next six pages of the memorandum's "Statement of Facts" more closely resembles a summation focusing on testimony and evidence which counsel posited should be accepted as true. At trial, however, counsel's alleged "facts" were contested by the People. Furthermore, the court finds some "facts" have little or no support in the record.

Evaluating the most critical seconds during this brief incident illustrates this point in high relief. At several points during body worn camera footage and on the witness stand at trial there was evidence that Christopher Pate showed Officer McAvoy a photo ID which was not in the name of the felon being sought for a violent felony. The "facts" in the memorandum correctly note that after showing photo ID to Officer McAvoy "Mr. Pate continued to walk away." That sentence then fast forwards to the point where both officers went around the corner onto Fulton Avenue. Such syntax, however, does not address what a fact finder might believe is a critical question: what happened between Mr. Pate and the officers before they turned the corner?

If believed by the judge, the body worn camera footage might show Officers McAvoy and Sippel heading back to their police car with backs turned to Mr. Pate as he continued to walk down the sidewalk toward Fulton. It could show Officer McAvoy taking off the leather gloves he testified he wears when he believes he may soon have physical contact with an individual. It could illustrate Officer Sippel with his hand at his waist in an area where he carried the fob used to lock and unlock the undercover police car. If the fact finder were to find that video believable, it shows Mr. Pate was walking down the street and had not reached the corner during that period. In addition, that same footage may depict Mr. Pate questioning the officer's authority to stop him earlier in the following exchange as the officers continued to walk to their car:

Christopher Pate: "You have no right..."

Officer McAvoy: "You coulda just pulled that out..."

Christopher Pate: "You have no right..."

Officer McAvoy: "Yes, I do..."

Christopher Pate: "You have no right..."

Officer McAvoy: "Alright, fine..."

After that argument, if credited by the fact finder, the body worn camera footage may show Officer Sippel turning to his left and following Christopher Pate toward the street corner repeatedly demanding that Pate show him ID.

During deliberation, the fact finder could have found that a common sense view of the testimony might question why two experienced officers would turn their backs on Christopher Pate and allow him to continue on his way down the street if they still believed he was a wanted violent felon.⁹ A fact finder might reasonably infer that Officer Sippel went after Mr. Pate demanding to be shown identification only after a verbal disagreement between Mr. Pate and his partner, Officer McAvoy. Contrary to the "facts" alleged in defense counsel's memorandum, a fact finder might determine that there was no legal law enforcement rationale justifying Officer Sippel's pursuit of Christopher Pate.¹⁰ In the final analysis resolution of these and other disputed questions of fact was the bench trial judge's responsibility.¹¹ Denial of the defendant's motions for trial orders of dismissal were not legal errors which would "require reversal on appeal." During any trial its just testimony, its only evidence. Nothing becomes a "fact" until a jury or a judge during deliberation finds any of the testimony or evidence to be believable! The last basis for relief involves not only similar factual issues¹² but also purported legal errors which were not challenged at trial. Any alleged errors regarding the court's charge, therefore, are un-preserved and would not "require reversal" on appeal. As the court noted during trial and on argument of this motion, the charge in this case was crafted by this court as there is no applicable criminal pattern jury instruction relating to authorization for and justification of an officer's use of force in situations such as the one presented here. This court's charge was drawn from both state and federal cases involving police/citizen encounters.¹³

As noted long ago by the Court of Appeals, "convictions are not to be set aside because, on reflection in tranquility, better charges could have been composed."¹⁴ In this case, the court repeatedly requested that both the prosecutor and defense counsel submit written requests to charge on the substantive law applicable to the allegations in this case. In addition, the court provided drafts of the proposed charge for their consideration. Given the lack of objection to the courts charge and the efforts undertaken by the court to seek counsel's suggestions, it is difficult to find at this point that reversal by an appellate court would be "required".

Conclusion

Regardless of the communities in which they occur, most interactions between members of law enforcement and the community are not problematic. In a very small but significant number of cases, however, street encounters between police officers and citizens serve as a reminder that when we act in haste, we often repent in leisure. Regardless of whether the situation involves a citizen who is accused of resisting arrest or an officer alleged to have used excessive force the allegations often end up in court where judges or juries are asked to sort things out. At that point, "the central purpose of a criminal trial is to decide the factual question of the...