Appeal from judgments of the Justice Court of the Town of Amenia, Dutchess County (Norman Moore, J.), rendered August 18, 2008.
People v Griffen (Edward)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ
The judgments convicted defendant, upon jury verdicts, of resisting arrest and harassment in the second degree.
ORDERED that the judgments of conviction are affirmed.
After being stopped by a state trooper for a traffic infraction, defendant refused to produce his driver's documentation to the trooper. Defendant stated to the officer, among other things, "You know what, fuck you, I've had enough of you guys. This is the US of A, man, I'm out of here," and departed at high speed. Following a pursuit, defendant and the trooper parked their vehicles in a residential driveway, whereupon defendant walked directly toward the trooper at a rapid pace, ignored the trooper's request that he submit to arrest, and punched the trooper in the mouth with sufficient force to inflict bruises and to draw blood. A struggle ensued, during which another trooper responded to the scene. Defendant attempted to strike both troopers, insisting that he intended to "kill" them, and he bit the trooper who had initially stopped him. The People ultimately charged defendant with resisting arrest (Penal Law § 205.30), criminal possession of a weapon (Penal Law § 265.01 ), harassment in the second degree (Penal Law § 240.26 ), and several traffic offenses. The charge of criminal possession of a weapon was dismissed following a suppression hearing, and the charges in relation to the traffic offenses were ultimately dismissed on procedural grounds.
At the hearing and at the jury trial, the trooper who had stopped defendant testified, among other things, that he had observed defendant operating his vehicle while his rear license plate was obstructed by a storage container mounted above the rear bumper (see Vehicle and Traffic Law § 402  [a]). At both the hearing and the trial, defendant's trial counsel attempted to admit into evidence what purported to be a photograph of the rear of defendant's vehicle, allegedly taken immediately after the vehicle was released to defendant from police impoundment, which depicted no obstruction of the rear license plate. The prosecutor objected on the grounds that the photo was unauthenticated and that there was no proof that the appearance of defendant's vehicle was unchanged since the arrest with respect to the location of the storage container relative to the license plate. At the hearing, the Justice Court declined to admit the photo, concluded that the initial stop and ultimate arrest of defendant were lawful, and refused counsel's request that it conduct a personal inspection of defendant's vehicle. At the trial, the Justice Court again rejected defendant's offer of the photograph, and the jury convicted defendant of resisting arrest and harassment in the second degree. On appeal, defendant argues that the hearing proof failed to establish that the stop and arrest were lawful, that the representation of trial counsel was ineffective in that he failed to lay the proper foundation for the admission of the photograph of defendant's automobile at the hearing and at trial, that the Justice Court erred in refusing to inspect defendant's vehicle, that the evidence was legally insufficient to establish that defendant intended to harass the arresting officer, and that the proof, in any event, was against the weight of the evidence.
We find no reason to disturb the conclusion of the Justice Court that there was probable cause to believe that defendant had committed a traffic offense which justified the initial stop. We also find without merit defendant's contention that his trial counsel was ineffective because he failed to have admitted into evidence, at the hearing and at the trial, the photograph of the rear of defendant's vehicle, alleged to depict the absence of any obstruction of the license plate. According to counsel, the photograph was taken by defendant after he had recovered his vehicle from police impoundment. However, the photograph was unauthenticated, as the defense called no witnesses at the hearing or at trial. The photograph could not be admitted into evidence without foundation testimony with respect to the time and location of the photograph to establish that the appearance of the vehicle as shown in the photograph was substantially the same as when defendant had been stopped (see People v Byrnes, 33 NY2d 343, 347 ; Corsi v Town of Bedford, 58 AD3d 225, 228-229 ; People v Carranza, 306 AD2d 351, 352 ; People v Brown, 216 AD2d 737, 738 ). It cannot be determined whether trial counsel's failure to present defendant as a witness with respect to the photograph represented a proper trial strategy, as defendant made no motion for a hearing to develop the relevant facts (see CPL 440.10; People v Rivera, 71 NY2d 705, 709 ; People v Love, 57 NY2d 998, 1000 ; People v Polanco, 13 AD3d 100, 101 ). On the available record, the Justice Court did not err in refusing to admit the photograph or, at the hearing, to conduct a personal inspection of defendant's vehicle.
Viewed in the light most favorable to the People, the evidence was legally sufficient to establish defendant's intent to harass the arresting officer (People v Contes, 60 NY2d 620, 621 ). As there is "[o]ften . . . no direct evidence of a defendant's mental state" (People v Smith, 79 NY2d 309, 315 ), intent may "be inferred from the act itself" or from the defendant's "conduct and the surrounding circumstances" (People v Bracey, 41 NY2d 296, 301 ). In light of defendant's hostile conduct towards the officer, from their initial encounter until defendant's purposeful approach to the officer, which culminated in a blow to the face and vigorous resistance to arrest, defendant's conduct, in the circumstances presented, evidenced his intent to harass the trooper and to resist arrest, beyond a reasonable doubt.
Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we are satisfied that the harassment conviction was not against the weight of the evidence (see People v Romero, 7 NY3d 633 ). The resolution of issues of credibility, as well as the weight to be accorded the evidence presented, is to be decided by the trier of fact, which had the opportunity to see and hear the witnesses (id. at 643-646), and its determination should be given great deference and should not be disturbed unless it appears that the trier of ...