People v. Zurita
| Decision Date | 09 June 1980 |
| Citation | 76 A.D.2d 871,428 N.Y.S.2d 495 |
| Parties | The PEOPLE, etc., Respondent, v. Robert ZURITA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Schwed & Zucker, Kew Gardens (Michael Schwed, Kew Gardens, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Deborah Carlin Stevens, Asst. Dist. Atty., Kew Gardens, of counsel), for respondent.
Before DAMIANI, J. P., and LAZER, GIBBONS and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 6, 1979, convicting him of reckless endangerment in the second degree and menacing, upon a jury verdict, and imposing sentence.
Judgment reversed, on the law, and as a matter of discretion in the interest of justice and new trial ordered.
At about 12:30 A.M. on July 21, 1978, while driving an automobile belonging to one of his passengers, defendant stopped on Utopia Parkway and waited for a change of light at the corner of Northern Boulevard. Edward Harris, a police officer riding home on a motorcycle and wearing civilian clothes, pulled up on defendant's left. Defendant leaned out his window and derided Harris' motorcycle, not knowing at the time that Harris was a police officer. When defendant turned right onto Northern Boulevard, Harris followed from the left lane, moving ahead of defendant's vehicle. When Harris was 50 to 100 feet in front of defendant's vehicle, he dismounted his motorcycle and approached defendant's vehicle which had pulled toward the curb. Harris explained at trial that his purpose was to take down the license plate number of defendant's car so he could report defendant's earlier reckless driving. The defendant claims that when he had made the remark about the motorcycle, Harris threatened to harm him and was then attempting to make good his threat. In any event, defendant, seeing Harris take a few steps toward his car, rapidly accelerated into the traffic on Northern Boulevard. Harris claims that the car would have hit him had he not quickly jumped to the curb, but defense witnesses said the car did not go near Harris and that defendant was merely trying to get away from him.
Harris then remounted his motorcycle and followed defendant's vehicle east on Northern Boulevard, then north on a side street after turning left off of Northern Boulevard. Defendant's vehicle stopped soon after turning; Harris stopped some distance behind and another vehicle with friends of defendant inside stopped behind the motorcycle. Persons exited both cars and surrounded Harris. When defendant was 20 to 30 feet away from Harris, he removed a studded belt from his pants, wrapped it tightly around his hand, and presented the wrapped fist to Harris,...
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