People v. Dorsey

151 A.D.3d 1391

58 N.Y.S.3d 636

The PEOPLE of the State of New York, Respondent,

v.Kasaad M. DORSEY, Appellant.

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

June 22, 2017.

Sandra M. Colatosti, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., ROSE, DEVINE and CLARK, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered November 14, 2014, upon a verdict convicting defendant of the crime of assault in the second degree.

In December 2013, defendant was indicted and charged with one count of assault in the second degree. The charge stemmed from events that unfolded during a "rip operation" that occurred in the parking lot of a Home Depot store in the City of Albany on the evening of October 1, 2013. Members of the Albany Police Department had arranged for a confidential informant to meet defendant, the target of the operation, in the parking lot. Although it was anticipated that defendant would have drugs on him at this time, the confidential informant had not been provided with any money to purchase drugs; rather, the plan was simply to take defendant into custody based upon certain prior "open felony sales ... for heroin"—specifically, an observed controlled buy that occurred on September 24, 2013. When defendant arrived and the officers moved in, defendant fled across the parking lot. During the course of the ensuing chase, takedown and attempt to subdue and handcuff defendant, which defendant strenuously resisted, one of the detectives involved fractured and dislocated the ring finger of his right hand.

As part of his omnibus motion, defendant argued that the police lacked probable cause to arrest him on October 1, 2013 based upon the September 24, 2013 drug transaction. County Court rejected defendant's argument, finding that there was probable cause for his arrest, and defendant thereafter stipulated for purposes of trial that the police were carrying out a lawful purpose on the night in question—one of the elements of assault in the second degree (see Penal Law § 120.05[3] ). At the conclusion of the jury trial that followed, defendant was convicted as charged and thereafter was sentenced—as a predicate nonviolent felony offender—to a prison term of 6 ½ years followed by five years of postrelease supervision, said sentence to run consecutively to "any other time owed." Defendant's subsequent motion to set aside the jury's verdict was denied, and this appeal ensued.¹

We affirm. Initially, we reject defendant's pro se contention that he was denied his right to appear before the grand jury. After defendant's then assigned counsel unsuccessfully sought dismissal of the indictment upon the ground that defendant was not afforded notice of and a reasonable time within which to exercise his right to appear before the grand jury (see CPL 190.50[5][a] ), defendant filed a pro se motion seeking reconsideration of County Court's ruling on this point. In conjunction therewith, defendant submitted an affidavit wherein he conceded "that on December 2, 2013, [the] Assistant District Attorney ... faxed a notice of presentment to defendant's prior counsel ... indicating that the case would be presented to the [g]rand [j]ury on December 3, 2013." As such, we are satisfied that defendant was provided with reasonable notice of the impending grand jury proceeding (compare People v. Wilkerson, 140 A.D.3d 1297, 1299–1300, 33 N.Y.S.3d 523 [2016], lv. denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016], with People v. Hymes, 122 A.D.3d 1440, 1441, 996 N.Y.S.2d 850 [2014] ). Further, contrary to defendant's assertion, counsel's alleged failure to apprise defendant of his right to testify before the grand jury does not constitute ineffective assistance of counsel (see People v. Zayas–Torres, 143 A.D.3d 1176, 1177–1178, 40 N.Y.S.3d 599 [2016] ; People v. Milton, 143 A.D.3d 918, 918, 39 N.Y.S.3d 497 [2016] ; cf. People v. Wilkerson, 140 A.D.3d at 1301, 33 N.Y.S.3d 523 ).

Nor are we persuaded that the police lacked probable cause for defendant's arrest on October 1, 2013, which was predicated upon a controlled buy that occurred on September 24, 2013. "Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief than an offense has been committed by the person arrested" ( People v. Garcia, 131 A.D.3d 732, 734, 14 N.Y.S.3d 809 [2015] [internal quotation marks, ellipsis and citations omitted], lv. denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ; see People v. Cruz, 131 A.D.3d 724, 726, 14 N.Y.S.3d 804 [2015], lv. denied 26 N.Y.3d 1087, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ). Here, the injured detective testified at the suppression hearing that defendant was an observed participant in a controlled buy involving a confidential informant that took place on September 24, 2013. Prior to meeting with defendant, the informant "was searched with negative results for contraband and buy money." Following the "observed sale," the informant returned with "a quantity of heroin on him." Such testimony, in our view, demonstrated that the police possessed "knowledge of facts and circumstances sufficient to support a reasonable belief that an offense ha[d] been ... committed" ( People v. Cruz, 131 A.D.3d at 726, 14 N.Y.S.3d 804 [internal quotation marks and citations omitted] ). Accordingly, we are satisfied that defendant's arrest was supported by probable cause.

As for defendant's claim that the verdict is not supported by legally sufficient evidence and/or is against the weight of the evidence, again, we disagree. Insofar as is relevant here, "[a] person is guilty of assault in the second degree when ... [w]ith intent to prevent a ... police officer ... from performing a lawful duty ... he or she causes physical injury to such ... police officer" ( Penal Law § 120.05[3] ; accord People v. Tucker, 141 A.D.3d 748, 749–750, 34 N.Y.S.3d 744 [2016] ; see People v. Caraballo, 136 A.D.3d 937, 940, 26 N.Y.S.3d 148 [2016], lv. denied 27 N.Y.3d 1067, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ). Physical injury, in turn, "means impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ). "To sustain [such] a conviction ..., 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. Tucker, 141 A.D.3d at 750, 34 N.Y.S.3d 744 [internal quotation marks and citations omitted] ). As this Court recently reiterated, "this crime is one of strict liability as...