People v. Tucker

• Decision Date: 07 July 2016
• Citation: 2016 N.Y. Slip Op. 05400,34 N.Y.S.3d 744,141 A.D.3d 748
• Parties: The PEOPLE of the State of New York, Respondent, v. Domonec TUCKER, Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 748
34 N.Y.S.3d 744
2016 N.Y. Slip Op. 05400

The PEOPLE of the State of New York, Respondent,
v.
Domonec TUCKER, Appellant.

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

July 7, 2016.

34 N.Y.S.3d 744

Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, MULVEY and AARONS, JJ.

34 N.Y.S.3d 745

PETERS, P.J.

141 A.D.3d 748

Appeal from a judgment of the Supreme Court (McDonough, J.), rendered March 6, 2015 in Albany County, upon a verdict convicting defendant of the crime of assault in the second degree.

In the early morning hours of February 23, 2013, three City of Albany police officers responded to a 911 call in which the caller requested police assistance but did not provide any detail as to the nature of the emergency. Upon arriving at the scene, officers Jason Seward and Jarrod Jourdin found a vehicle abandoned at an intersection and saw defendant, who was approximately a block away from the intersection, struggling with a male over a purse. Seward identified himself as a police officer and commanded defendant and the male to come towards him. Each complied, with the male behaving aggressively while approaching Seward. At this point, officer Joseph Smith arrived and observed defendant and the male walking towards Seward. Seward and Jourdin thereafter detained the male, and Smith approached defendant with the belief that a domestic incident had occurred between defendant and the male and that the two should be separated.

After Smith approached defendant, he saw tears on defendant's face and then began questioning her in an effort “to assess whether she was okay” and to investigate the 911 call. According to Smith, defendant did not respond to his questions and, instead, focused all of her attention on the male, who was being detained by Seward and Jourdin approximately five feet away. Although Smith made several attempts to draw defendant's attention and engage her in conversation, she remained nonresponsive and attempted to walk towards the male.

According to Smith, after questioning defendant for about 30 seconds to a minute without receiving any response, he decided to detain and handcuff defendant “to gain [her] full attention and to actually have [defendant and the male] separated.” Smith then grabbed defendant's arm and stated, “ma'am, I'm going to detain you. I want to put you in handcuffs. It is for your safety, it's for our safety until we can figure out what's happening. You are not responding to me but I'm going to put handcuffs on you.” Defendant complied and placed her hands behind her back and then proceeded to tell Smith about a back injury she had, that “she didn't need to be detained or

141 A.D.3d 749

handcuffed” and that she “didn't do anything.” Smith responded, “You are going to be detained until I can figure out what's happening here.” As Smith was attempting to place the handcuffs on defendant, she tried to pull away from him. Defendant was later forced to the ground,¹ where she began swinging her arms and kicking her legs at Smith. Two other police officers later arrived to assist Smith in controlling defendant. During the altercation, Smith and one of the assisting officers each sustained an injury to a knee, and Smith also suffered a facial laceration.²

34 N.Y.S.3d 746

Defendant was indicted and charged with two counts of assault in the second degree. Following a jury trial, she was convicted of the count regarding her altercation with Smith, but acquitted of the count involving the assisting officer. Sentenced to two years in prison, to be followed by three years of postrelease supervision, defendant appeals.

Defendant contends that the verdict was not supported by legally sufficient evidence, claiming that the People failed to prove that Smith was performing a lawful duty at the time when defendant assaulted him. While defendant's challenge to the legal sufficiency of the evidence is not preserved for our review due to her failure to advance it specifically in her motion to dismiss (see People v. Powell, 128 A.D.3d 1174, 1175, 9 N.Y.S.3d 452 [2015] ; People v. Andrews, 127 A.D.3d 1417, 1419, 7 N.Y.S.3d 647 [2015], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015] ), upon our review of the record, we nevertheless exercise our interest of justice jurisdiction and reverse defendant's conviction (see CPL 470.15[6] ; 470.20 [2]; People v. Hemingway, 85 A.D.3d 1299, 1301 n. 2, 925 N.Y.S.2d 677 [2011] ; People v. Caulkins, 82 A.D.3d 1506, 1507, 919 N.Y.S.2d 597 [2011] ; People v. Bruno, 63 A.D.3d 1297, 1299, 880 N.Y.S.2d 777 [2009], lv. denied 13 N.Y.3d 858, 891 N.Y.S.2d 692, 920 N.E.2d 97 [2009] ).

“ ‘[A] person is guilty of assault in the second degree when ... [w]ith intent to prevent a ... police officer ... from

141 A.D.3d 750

performing 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.3d 526, 37 N.E.3d 1169 [2015] ; see People v. Somerville, 72 A.D.3d 1285, 1287, 900 N.Y.S.2d 468 [2010] ). “To sustain a conviction of assault in the second degree under Penal Law § 120.05(3), the People must establish that the injured police officer was engaged in a lawful duty at the time of the assault by the defendant” (People v. Lindsey, 52 A.D.3d 527, 529, 859 N.Y.S.2d 486 [2008] [internal quotation marks and citations omitted], lv. denied 11 N.Y.3d 738, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ; see People v. Cofield, 131 A.D.3d 539, 540, 14 N.Y.S.3d 693 [2015], lv. denied 26 N.Y.3d 1038, 22 N.Y.S.3d 168, 43 N.E.3d 378 [2015] ; People v. Hurdle, 106 A.D.3d 1100, 1103, 965 N.Y.S.2d 626 [2013], lvs. denied 22 N.Y.3d 956, 996, 977 N.Y.S.2d 187, 999 N.E.2d 552 [2013] ).

Here, Smith's conduct in physically restraining defendant and attempting to place handcuffs on her constituted, at least, a forcible detention, which required Smith to have a reasonable suspicion that defendant...