People v. Zachary
| Decision Date | 08 January 2020 |
| Docket Number | 2014–06211,Ind.No. 13–00300 |
| Citation | 179 A.D.3d 722,117 N.Y.S.3d 287 |
| Parties | The PEOPLE, etc., Respondent, v. Chaz ZACHARY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Richard Greenblatt, Highland Mills, NY, for appellant, and appellant pro se.
David M. Hoovler, District Attorney, Middletown, N.Y. (Nicholas D. Mangold of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Orange County (Jeffrey G. Berry, J.), rendered May 27, 2014, convicting him of assault in the second degree, attempted assault in the third degree, unlawful possession of marijuana, tampering with physical evidence, resisting arrest, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction of tampering with physical evidence to attempted tampering with physical evidence, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for further proceedings in accordance herewith.
On May 9, 2013, Police Officer Kevin Lahar and Police Officer William Lahar were assigned to a team of officers to police "quality of life crimes" in the City of Newburgh. That evening, the officers were conducting surveillance of a store located at 120 Broadway in the City in response to numerous complaints of "people drinking out in front of the store, dealing drugs and using drugs." At approximately 6:30 p.m., the officers observed the defendant exit the store holding a brown paper bag. The defendant was observed opening a bottle that was in the bag and drinking from it. The officers transmitted a description of the defendant over the radio to the other members of their team. Police Officer Roman Scuadroni, who was wearing a vest marked "police," responded to the scene and observed the defendant, who matched the description given in the radio transmission, holding a brown paper bag. Officer Scuadroni stopped his unmarked police vehicle, approached the defendant, and identified himself as a police officer. The defendant dropped the bag causing the bottle inside to shatter, and fled. As Officer Scuadroni pursued the defendant, he observed the defendant discard a plastic bag which, it was later determined, contained marijuana. Officer Scuadroni immediately recovered the bag and continued his pursuit of the defendant. Officer Scuadroni eventually caught the defendant and attempted to arrest him for violating the City's open-container law. Additional officers responded to the scene, and once the defendant was subdued, he was placed under arrest. A plastic bag containing numerous smaller bags of what was later determined to be cocaine was seized from the defendant's person. The defendant was then transported to the police station. At the station, the defendant asked Officer Scuadroni, among other officers, if he was the officer that pursued him. Officer Scuadroni responded "yes." Office Scuadroni then took the defendant to a room in the station that was used to conduct strip searches (hereinafter the strip search room). Upon removing the defendant's handcuffs to conduct a strip search, the defendant punched Officer Scuadroni in the head, causing him to sustain a laceration that required three surgical staples.
Prior to trial, the defendant made an omnibus motion, inter alia, to suppress physical evidence and his statements to law enforcement officials. The County Court denied those branches of the omnibus motion. At trial, the defendant testified, among other things, that he was holding a bottle of ginger ale, not alcohol, and denied discarding a bag of marijuana as he was being chased by Officer Scuadroni. The defendant claimed that he stopped running as soon as he realized that Officer Scuadroni was a police officer, and that nothing was recovered from his person following his arrest. The defendant testified that he began "tussling" with Officer Scuadroni in the strip search room after Officer Scuadroni twisted his arm. After a jury trial, the defendant was convicted of assault in the second degree, attempted assault in the third degree, unlawful possession of marijuana, tampering with physical evidence, resisting arrest, and criminal possession of a controlled substance in the seventh degree.
The defendant's contention, raised in his pro se supplemental brief, that the County Court should have granted those branches of his omnibus motion which were to suppress physical evidence and his statements to law enforcement officials is without merit. We agree with the court's determination, based on the evidence that it found to be credible, that Officer Scuadroni was justified in pursuing the defendant when he fled and had probable cause to arrest the defendant for violating the City's open-container law (see CPL 140.10 ; People v. Britt , 160 A.D.3d 428, 429–430, 74 N.Y.S.3d 207 ; People v. Diggs , 153 A.D.3d 1428, 60 N.Y.S.3d 697 ; People v. Mitchell , 148 A.D.3d 730, 731, 48 N.Y.S.3d 488 ; People v. Pace , 143 A.D.3d 1286, 1287, 38 N.Y.S.3d 827 ; People v. Basono , 122 A.D.3d 553, 553, 997 N.Y.S.2d 415 ; People v. Bothwell , 261 A.D.2d 232, 234, 690 N.Y.S.2d 231 ).
We agree with the County Court's denial of the defendant's request for an adverse inference charge with respect to a 15–second gap in video footage taken from one of three camera angles of the incident in the strip search room. The defendant does not contend that video footage of the incident taken from the other two camera angles had any gaps. " ‘[U]nder the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State’ " ( People v. Rosario , 143 A.D.3d 1004, 1004–1005, 39 N.Y.S.3d 802, quoting People v. Handy , 20 N.Y.3d 663, 669, 966 N.Y.S.2d 351, 988 N.E.2d 879 ). Here, there was no evidence that the police erased, altered, or deleted any portion of the subject video footage (see People v. Rosario , 143 A.D.3d at 1004, 39 N.Y.S.3d 802 ; People v....
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