People v. Somerville

• Decision Date: 15 April 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Kalford SOMERVILLE, Appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 468 72 A.D.3d 1285 The PEOPLE of the State of New York, Respondent, v. Kalford SOMERVILLE, Appellant. Supreme Court, Appellate Division, Third Department, New York. April 15, 2010.

Susan BetzJitomir, Bath, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Damian M. Sonsire of counsel), for respondent.

Before: SPAIN, J.P., ROSE, KAVANAGH, STEIN and EGAN JR., JJ.

SPAIN, J.P.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered December 5, 2008, upon a verdict convicting defendant of the crimes of assault in the second degree and resisting arrest.

Defendant appeals from his convictions of assault in the second degree and resisting arrest stemming from an altercation with police on the night of June 9, 2008 outside his girlfriend's apartment on Hazel Street in the Town of Southport, Chemung County. A prolonged argument between defendantand his girlfriend, Regina Coley, resulted in three 911 calls to the Chemung County Sheriff's Department. Police responded to the first two calls and, each time, defendant-who was intoxicated-agreed to leave but later returned.

At approximately 11:30 P.M., the third 911 call reported that the situation had escalated and a sword or edged weapon was involved. State Trooper Jason Wood and Deputy Sheriff Robert Wheeler responded to the scene where Coley, some of her family members and defendant were outside the apartment. According to the officers' testimony at trial, when they arrived defendant ran from the front porch and down the driveway. Wheeler ran toward defendant, yelling at him that he was under arrest, to show his hands and get down on the ground. Instead, defendant grabbed Wheeler with both hands, forced him to the ground, and landed on top of him, injuring Wheeler's arm. During the ensuing struggle, Wheeler accidently "tased" Wood, who was trying to pull defendant off Wheeler, but then Wheeler successfully used his taser to stun and subdue defendant.

Defendant was indicted on four counts, including assault in the second degree (against Wheeler), resisting arrest, assault in the third degree (based on the allegation that he had knocked Coley's elderly mother to her knees, resulting in injury) and menacing in the second degree (based on allegations that he chased Coley's daughter with a bayonet). After a jury trial, defendant was convicted of the two counts involving the altercation with police, but acquitted of the other two. He was sentenced to five years in prison with three years of postrelease supervision on the assault charge and one year of incarceration on the resisting arrest charge, to run concurrently with the other sentence. Based on the convictions, County Court also issued orders of protection pursuant to CPL 530.13 for Coley and four other family members who were present that night and later testified at trial. Defendant now appeals.

First, we reject defendant's argument that the evidence at trial was legally insufficient to support his convictions. In reviewing the legal sufficiency of a verdict, we must view the evidence in the light most favorable to the People ( see People v. Roberts, 63 A.D.3d 1294, 1296, 881 N.Y.S.2d 520 [2009] ), and " 'determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury ... and as a matter of law satisfy the proof and burden requirements for every element of the crime[s] charged' " ( People v. Scanlon, 52 A.D.3d 1035, 1038, 861 N.Y.S.2d 426 [2008], lv. denied 11 N.Y.3d 741, 864 N.Y.S.2d 399, 894 N.E.2d 663 [2008], quotingPeople v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [citation omitted] ).

A 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] ). Here, the police responded to a report of a domestic incident where a male was chasing the residents around with a sword or knife. When the officers arrived, witnesses pointed out defendant who was running along the driveway and whose hands, at that point, could not be seen. Under these circumstances, the officers had the right and duty-as part of their investigation of the domestic violence complaint-to order defendant to stop. Defendant's response-his act of forcefully throwing Wheeler to the ground and causing a painful injury to his arm-provided ample evidence of his intent to interfere with Wheeler's lawful duty and, thus, to support the assault second conviction. As the police had probable cause at that point to arrest defendant for assault, his continued resistance, until stunned into submission, supports his resisting arrest conviction ( see CPL 70.10, 140.10[1][b]; People v. Bruno, 47 A.D.3d 1064, 1066, 849 N.Y.S.2d 701 [2008], lv. denied 10 N.Y.3d 809, 857 N.Y.S.2d 42, 886 N.E.2d 807 [2008] ).

Next, we reject defendant's assertion that his due process rights were violated because two of the jurors visited the scene of the alleged incident on their own time. No record evidence supports this contention. County Court permitted one juror to pick up her granddaughter from a babysitter who lived on Hazel Street and another juror, who actually lived on Hazel Street, to return home. In both instances, the jurors were instructed, and agreed, not to drive by or visit the scene ( see People v. Grey, 150 A.D.2d 823, 823-824, 540 N.Y.S.2d 378 [1989], lv. denied 74 N.Y.2d 810, 546 N.Y.S.2d 568, 545 N.E.2d 882 [1989]; cf. People v. De Lucia, 20 N.Y.2d 275, 279-280, 282 N.Y.S.2d 526, 229 N.E.2d 211 [1967] ).

Defendant also asserts that errors in his presentence report deprived him of due process. Though unpreserved, we must address this issue in light of defendant's contention that, based in part on his attorney's failure to object to the presentence report, defendant was deprived of the effective assistance of counsel. Specifically, defendant focuses on the fact that the report states that he pleaded guilty in this case when, in fact, he was convicted after a trial and that the report erroneously marks him as a "non-veteran." We find that these minor errors did not operate to prejudice defendant.

Given that the first page...