People v. Voliton

• Decision Date: 22 February 1994
• Citation: 83 N.Y.2d 192,608 N.Y.S.2d 945,630 N.E.2d 641
• Parties: , 630 N.E.2d 641 The PEOPLE of the State of New York, Respondent, v. Edward VOLITON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 945

608 N.Y.S.2d 945

83 N.Y.2d 192, 630 N.E.2d 641

The PEOPLE of the State of New York, Respondent, v. Edward VOLITON, Appellant.

Court of Appeals of New York.

Feb. 22, 1994.

Monroe A. Semble and John F. Middlemiss, Jr., Riverhead, for appellant.

James M. Catterson, Jr., Dist. Atty. of Suffolk County, Riverhead (Karen Petterson, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

After a jury trial, defendant was convicted of two counts of assault in the second degree, for causing physical injuries to two officers of the Suffolk County Police Department with intent to prevent each of them from performing a lawful duty; assault, third degree, for recklessly causing physical injury to one of the officers; and resisting arrest.

The charges against defendant arose from an incident which began about 3:00 A.M. November 18, 1987 on Davidson Street in Wyandanch. While patrolling in a marked police car, uniformed Suffolk County Police Officers James Faughnan and Bryan Carty observed a red Hyundai automobile parked partly on the street and partly on the dirt yard of an abandoned house which they believed to be the site of drug and prostitution activities. The officers' version of what transpired was as follows. They pulled alongside the Hyundai and asked defendant, sitting in the driver's seat, for his license and registration and an explanation for his presence at that location. Defendant responded by rolling his window up, making an obscene hand gesture and slowly moving his vehicle forward. The officers then moved the patrol car at an angle to block defendant's forward movement and exited to position themselves on each side of defendant's vehicle. Because it was dark, raining and the windows of the Hyundai were tinted, the officers had difficulty seeing inside defendant's vehicle. But when they saw defendant appear to be reaching down for something below the passenger seat, the officer near the passenger's side broke the side window with his flashlight and ordered defendant at gunpoint to come out of his vehicle. Defendant then wildly maneuvered his car to extricate himself from the situation and eventually did so, but not before both officers were injured by contact with the Hyundai and three shots were fired by the police at defendant's car, one of which hit defendant in the elbow. After a high-speed chase for several miles, culminating at a dead-end street, defendant fled from his vehicle by foot and was then apprehended by Officer Faughnan and placed in handcuffs after a physical struggle in which he kicked and punched both officers.

The Appellate Division vacated the two assault, second degree, convictions and dismissed those charges (190 A.D.2d 764, 593 N.Y.S.2d 822). Relying on our holding in People v. May, 81 N.Y.2d 725, 593 N.Y.S.2d 760, 609 N.E.2d 113, (decided after defendant's trial), the Appellate Division concluded that the police officers were engaged in an unlawful seizure of defendant when they detained him by blocking his vehicle and displaying their weapons without having any reasonable suspicion that criminal activity was afoot at the time. The illegality of the seizure, therefore, negated a necessary element of the assault, second degree, convictions, i.e., that the defendant's acts against the police in evading detention were committed "[w]ith intent to prevent [them] from performing a lawful duty" (Penal Law § 120.05[3] [emphasis supplied]. Because the illegality of the seizure of defendant by the police had not been raised at the trial level, however, the Appellate Division invoked its interest of justice discretionary authority to vacate and dismiss the felony assault convictions (see, CPL 470.15[3]. The Court, however, affirmed the convictions for reckless assault, third degree, and resisting arrest. A Judge of this Court granted defendant leave to appeal. We now affirm.

On this appeal from the affirmance of his assault, third degree, and resisting arrest convictions, defendant urges only two points. The first of his grounds for reversal is that substantive due process bars convicting him for actions in direct response to the "grossly" illegal seizure of his person by the police. ^* As defendant concedes, however, this constitutional objection was raised for the first time before the Appellate Division and, thus, is beyond our power to review unless it falls within the narrow class of cases in which we have held preservation by timely objection is unnecessary.

Exceptions to the preservation rule have been limited to errors going to the very organization of the court or at such basic variance with the mode of procedure mandated by law that they impair the essential validity of the criminal proceedings (see, People v. Patterson, 39 N.Y.2d 288, 295-296, 383 N.Y.S.2d 573, 347 N.E.2d 898; see also, People v. Michael, 48 N.Y.2d 1, 6, 420 N.Y.S.2d 371, 394 N.E.2d 1134). We have generally applied the preservation rule to due process objections (see, e.g., People v. Iannelli, 69 N.Y.2d 684, 685, 512 N.Y.S.2d 16, 504 N.E.2d 383; People v. Barry A., 40 N.Y.2d 990, 993, 391 N.Y.S.2d 67, 359 N.E.2d 663). Notably, in People v. Patterson, 53 N.Y.2d 829, 831, 440 N.Y.S.2d 172, 422 N.E.2d 817, we held that an objection based upon an unlawful seizure of the defendant's person was fully subject to the timely preservation requirement. Defendant's challenge to the constitutionality of his conviction based on the unlawful seizure of his person by the police here is not distinguishable in kind from that raised by the defendant in People v. Patterson (supra) as to whether some exception to the preservation rule applies (see also, People v. Dancey, 57 N.Y.2d 1033, 1035, 457 N.Y.S.2d 782, 444 N.E.2d 32; People v. Martin, 50 N.Y.2d 1029, 1031, 431 N.Y.S.2d 689, 409 N.E.2d 1363). Accordingly, we find this claim unpreserved for our review.

Defendant's remaining point is addressed only to his resisting arrest conviction. He argues that because the Appellate Division expressly found that the acts of the police in detaining and attempting to seize him "were unlawful at the time the alleged injuries [to the police] were inflicted" (190 A.D.2d 764, 767, 593 N.Y.S.2d 822, supra ), defendant's arrest by the police was not "authorized", thus negating an essential element of the crime of resisting arrest (see, Penal Law § 205.30; People v. Peacock, 68 N.Y.2d 675, 677, 505 N.Y.S.2d 594, 496 N.E.2d 683). We disagree.

The trial court charged the jury that, to find defendant guilty of resisting arrest, it was required to find beyond a reasonable doubt, inter alia, that defendant "punched and kicked" the two officers, knowing that they were police officers, and in doing so intentionally attempted to prevent the officers from effecting an authorized arrest. Both officers testified that the only punching and kicking by defendant occurred well after the initial incident on Davidson Street and defendant's flight therefrom, when Officer Faughnan apprehended him on foot and both officers were attempting to subdue and handcuff him. Although defendant gave a different version of his and the officers' conduct when he was finally apprehended, there is no reasonable view of the evidence that any punching or kicking by him occurred at any earlier point in the entire incident.

Similarly, under the trial court's very specific fact-related instructions to the jury in submitting assault, third degree, as a lesser included offense to one of the other counts of the indictment, the verdict convicting defendant of assault in the third degree was necessarily based upon the jury's finding that Officer Carty was injured by contact with defendant's car during the initial Davidson Street encounter as a result of defendant's reckless conduct in maneuvering his automobile to avoid being detained by the officers. Defendant has not disputed the legal sufficiency of the People's evidence to support that finding.

Moreover, there is no issue properly before this Court of defendant's justification for his use of force in this initial encounter with the police. Penal Law § 35.27 provides that "[a] person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer * * * when it would reasonably appear that the latter is a police officer" (emphasis supplied). Defendant did not timely request a jury instruction that he would have been justified in using physical force in self-defense against any excessive force employed by the police in attempting to detain him (cf., People v. Stevenson, 31 N.Y.2d 108, 112, 335 N.Y.S.2d 52, 286 N.E.2d 445) and the trial court's refusal to entertain defendant's belated request to charge surely cannot be viewed as an abuse of discretion as a matter of law. Therefore, defendant's commission of an assault, third degree, against Officer Carty during that initial encounter furnished the predicate for his subsequent authorized arrest by Officer Faughnan. Accordingly, defendant's conviction for resisting that arrest was properly affirmed by the Appellate Division.

The order of the Appellate Division should be affirmed.

SMITH, Judge (dissenting).

Because the trial in this case was fundamentally flawed, I dissent and would reverse the order of the Appellate Division. First, defendant was denied the opportunity to have a jury consider his position that his actions were justified when the trial court declined to give a charge on justification. Second, defendant's argument that his convictions violate due process should be reviewed by this Court even in the absence of preservation. Third, he was entitled to have a jury consider the charge of assault in the third degree with the knowledge that the conduct of the police was illegal. Fourth, no basis existed for a conviction for resisting arrest.

I

Defendant's conviction, after a jury trial, of two counts of assault in the second degree, assault in the third degree, and...