People v. Vernick-Chaikin
| Citation | 43 N.Y.S.3d 769 (Table) |
| Decision Date | 05 August 2016 |
| Docket Number | No. 2014–904 S CR.,2014–904 S CR. |
| Parties | The PEOPLE of the State of New York, Respondent, v. Allison VERNICK–CHAIKIN, Appellant. |
| Court | New York Supreme Court — Appellate Term |
Appeal from a judgment of the District Court of Suffolk County, First District (Chris Ann Kelley, J.), rendered February 10, 2014. The judgment convicted defendant, upon a jury verdict, of assault in the third degree. The appeal from the judgment of conviction brings up for review (1) so much of an order of the same court dated December 4, 2012 as denied the branch of defendant's motion seeking to dismiss the accusatory instrument in furtherance of justice, (2) so much of an order of the same court dated May 22, 2013 as denied the branch of defendant's motion seeking to dismiss the accusatory instrument on statutory speedy trial grounds, and (3) an order of the same court dated December 17, 2013 which denied defendant's posttrial motion to set aside the jury's verdict and to dismiss the accusatory instrument.
ORDERED that the judgment of conviction is affirmed.
Defendant was charged in a misdemeanor complaint, filed on January 12, 2012, with assault in the third degree (Penal Law § 120.00[1] ). The factual portion of the accusatory instrument alleged that, on or about January 11, 2012, defendant intentionally struck her husband in the head with a baseball bat, causing him physical injury. According to the District Court, a supporting deposition from defendant's husband was filed on April 3, 2012. Defendant thereafter moved to, among other things, dismiss the accusatory instrument in furtherance of justice, which motion was denied by the District Court by order dated December 4, 2012. A superseding misdemeanor information, charging defendant with the same crime (assault in the third degree) based on substantially the same facts, was filed on April 5, 2013. Thereafter, defendant moved to, among other things, dismiss the superseding information on statutory speedy trial grounds, which motion was denied by the District Court by order dated May 22, 2013.
Following a jury trial, defendant was found guilty as charged. Defendant thereafter moved, pursuant to CPL 330.30, to set aside the jury's verdict and, pursuant to CPL 330.50, to dismiss the accusatory instrument. Defendant contended, among other things, that the court had improperly allowed rebuttal testimony regarding collateral facts, and had delivered an expanded intent charge to the jury which permitted the People to have an alternative theory of prosecution. By order dated December 17, 2013, the District Court denied defendant's posttrial motion. Defendant appeals from the judgment rendered February 10, 2014 convicting her of assault in the third degree.
With respect to the branch of defendant's first pretrial motion seeking to dismiss the accusatory instrument in furtherance of justice, we note that "[t]he discretionary authority to dismiss an [accusatory instrument] in furtherance of justice should be exercised sparingly and only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution of the [instrument] would be an injustice" (People v. Sherman, 35 AD3d 768, 768 [2006] [internal quotation marks omitted]; see also People v. Clayton, 41 A.D.2d 204 [1973] ). Upon consideration of the circumstances of this case and the factors set forth in CPL 170.40(1), we conclude that none of the factors, individually or collectively, warrant the extraordinary remedy of dismissal of the accusatory instrument in furtherance of justice (see People v. Candelaria, 50 AD3d 913 [2008] ; Sherman, 35 AD3d at 768 ). Consequently, we find that the District Court properly denied this branch of defendant's first pretrial motion.
With respect to the branch of defendant's second pretrial motion seeking to dismiss the accusatory instrument on speedy trial grounds, we note that the burden was on defendant to show, through sworn allegations, the existence of an unexcused delay in excess of the statutory maximum (see People v. Santos, 68 N.Y.2d 859, 861 [1986] ; People v. Lomax, 50 N.Y.2d 351, 357 [1980] ) of 90 days required for prosecuting a class A misdemeanor (see CPL 30.30[1][b] ). Defendant's sole basis for seeking to dismiss on statutory speedy trial grounds was that the People had not filed a jurisdictionally sufficient accusatory instrument until they filed the superseding information on April 5, 2013, over a year after the commencement of the action, and that, as a result, the People "were not and could not possibly have been ready" until the 90–day period for prosecuting class A misdemeanors had elapsed. However, the record demonstrates that the People effectively converted the misdemeanor complaint to a jurisdictionally sufficient information by the filing of the supporting deposition (see CPL 100.20, 170.65[1] ; People v. Douglass, 60 N.Y.2d 194 [1983] ; People v. Bray, 46 AD3d 1232 [2007] ) "[o]n or prior to" April 3, 2012, as indicated by the District Court in its order dated May 22, 2013, and defense counsel conceded in the moving papers that he had received that deposition. Further, the District Court noted in its order that defendant had been arraigned a second time on April 3, 2012. Thus, the sole basis for defendant's speedy trial claim lacks merit. Consequently, we find that the District Court properly denied this branch of defendant's second pretrial motion.
With respect to defendant's contention in her posttrial motion that the court improperly allowed rebuttal testimony, we find that, given the presence of a justification defense in this case, the challenged rebuttal testimony was not collateral since it related to a material issue in the case (see People v. Harris, 57 N.Y.2d 335 [1982] ; People v. Wilson, 297 A.D.2d 298 [2002] ; People v. Beavers, 127 A.D.2d 138 [1987] ), i.e., the intent element of assault in the third degree. Once the evidence presented at trial properly placed justification in issue, the People bore the burden of proving beyond a reasonable doubt that defendant was not justified in her actions (see Penal Law §§ 25.00[1] ; 35.00, 35.15; see also People v. McManus, 67 N.Y.2d 541, 546–547 [1986] ). "Rebutting evidence in such cases means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove" (Harris, 57 N.Y.2d at 345 [internal quotation marks and citations omitted]; see also People v. Alvino, 71 N.Y.2d 233, 248 [1987] ). Moreover, "[w]hen evidence directly challenges the truth of what a witness has said in matters crucial to or material to the issues on trial, by no process of reason can it be held to be collateral" (People v. Hill, 52 A.D.2d 609, 611 [1976] ). Here, the rebuttal testimony was offered for the purpose of disproving facts set forth by defendant with regard to the very issue that the jury was asked to resolve (see People v. Wise, 46 N.Y.2d 321, 328 [1978] ; People v.. Schwartzman, 24 N.Y.2d 241, 246 [1969] ). In any event, even if the challenged testimony was not technically of a rebuttal nature, the trial court nevertheless properly permitted its introduction in the interest of justice (see CPL 260.30[7] ; Harris, 57 N.Y.2d at 345–346 ; People v. Medina, 130 A.D.2d 515 [1987] ; People v. O'Dell, 111 A.D.2d 937 [1985] ). Consequently, we find that the District Court properly denied this branch of defendant's posttrial motion.
With respect to defendant's contention in her posttrial motion that the court improperly delivered an expanded intent charge, we note that intent is to be considered in light of all of the circumstances and can be formed in a variety of contexts over a period of time or in a brief instant before the commission of an act (see People v. Bracey, 41 N.Y.2d 296, 301 [1977] ; People v. Jackson, 117 A.D.2d 623 [1986] ). In this case, intent was the central issue raised by both parties. Therefore, the court cannot be faulted for delivering the expanded intent charge (see People v.. Steinberg, 79 N.Y.2d 673, 684 [1992] ). It is well settled that in evaluating a challenged jury instruction, the charge must be viewed as a whole against the background of the evidence produced at the trial (see People v. Walker, 26 NY3d 170, 174–175 [2015] ; People v. Medina, 18 NY3d 98, 104 [2011] ; People v. Umali, 10 NY3d 417, 426–427 [2008] ). Here, the court provided an accurate definition of intent, which mirrored the expanded charge on intent set forth in the New York State Criminal Jury Instructions (CJI2d[NY] Culpable Mental States—Intent; see People v. Haardt, 129 AD3d 1322 [2015] ; People v. Gibbs, 307 A.D.2d 536 [2003] ). Furthermore, despite defendant's contention to the contrary, the expanded intent charge did not unduly focus on the fact that intentional conduct does not require premeditation. Thus, the charge sufficiently explained the required mental culpability and did not confuse the jury regarding the correct rules to be applied in arriving at a decision (see Walker, 26 NY3d at 175 ; People v. Bishop, 117 AD3d 430 [2014] ; Gibbs, 307 A.D.2d 536 ). Moreover, the court's instructions did not alter a factual allegation contained in the accusatory instrument, inject a new element, or expand or change the theory of the prosecution (see People v. Spann, 56 N.Y.2d 469, 473 [1982] ; People v. Prato, 143 A.D.2d 205 [1988] ; People v. Barbaran, 118 A.D.2d 578 [1986] ). As the District Court, under the circumstances presented, properly instructed the jury on the law of intent, we find no error in the court's denial of the branch of defendant's posttrial motion with respect thereto.
Defendant's remaining contentions are either unpreserved for appellate review or without merit.
Accordingly, the judgment of conviction is affirmed.
IANNACCI, J.P., dissents in a separate memorandum.
Iannacci, J.P.,...
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