The opinion of the court was delivered by: Read, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The issue in this appeal is whether the evidence adduced at trial was legally sufficient to establish that defendant Christian Bueno acted "[w]ith intent to prevent" an emergency medical technician (EMT) "from performing a lawful duty" when he caused an EMT to suffer physical injury (see Penal Law § 120.05 ). As the uniformed EMT was climbing into the driver's side of an ambulance, defendant blindsided him with a blow to the head, threw him to the ground and pummeled him repeatedly about the face and head. The EMT and his partner on a two-person ambulance crew were about to drive away from the premises where they had just treated an injured woman. We conclude that the People made out a prima facie case of intent by presenting evidence that defendant attacked someone he had reason to know was an EMT on duty at the time.
At about 2:20 A.M. on the day before Christmas in 2006, EMTs William Spinelli and Linda Aanonsen were dispatched by ambulance to 190 Butler Street in Brooklyn in response to a call for medical assistance for a woman who injured her hand and a man who suffered a bleeding face in a fight. Their workshift was from 12:30 A.M. until 8:30 A.M. that day. Spinelli described the ambulance as a big, white vehicle with the words "Lutheran Medical Center Ambulance" imprinted on it, and Fire Department, 911 and EMS stickers on both doors. Spinelli drove the ambulance on this occasion, and activated its lights and siren. Spinelli and Aanonsen were wearing their uniforms -- navy pants and a matching pullover displaying their names, the letters "EMT" and their shield numbers, as well as insignia identifying them as EMTs associated with Lutheran Medical Center Emergency Medical Services.
Upon arrival at 190 Butler Street -- the address of a small, three-story apartment house -- Spinelli parked the ambulance in the street in front of the building. Eight to 10 people were congregating outside the building's entrance. One of them, who identified himself as an off-duty auxiliary police officer, told the EMTs that there was an injured woman inside, and led them to the rear apartment on the first floor. Spinelli and Aanonsen were carrying their equipment -- a small collapsible wheelchair called a stair chair; a trauma bag, which is "a larger size bag . . . about 2 feet long," red in color, where supplies such as bandaging, water and ice packs are stored; and a similarly sized oxygen bag, which contained an oxygen tank and devices used to administer oxygen.
The EMTs observed about 15 people in the apartment, as well as beer cans and coolers, causing Spinelli to conclude that there had been "a party of some sorts." The injured woman complained of pain in her right hand, on which she had placed an ice pack; she told the EMTs that "she had been in a verbal altercation with somebody, and punched a wall with her right hand." The EMTs did not see and were not directed to or approached by anyone bleeding from the face.
Aanonsen gave the woman another ice pack and took her vital signs. The EMTs advised her to go to the hospital for x-rays in light of the possibility of a broken hand. Spinelli described the woman as "[p]leasant" and "[f]ine"; she declined to accompany them to the hospital. Since at that point "[t]here was not much more [the EMTs] could do other than what [they] had done already," they left the apartment about 15 minutes after their arrival at 190 Butler Street. On their way back to the ambulance, they again passed by eight to 10 people standing outside near the building. Someone called out "Have a safe night. Merry Christmas," and the EMTs responded in kind.
After the EMTs stowed their gear in the ambulance, Spinelli unlocked the passenger side door for Aanonsen, who climbed in. He then walked around to the driver's side and opened the door. But as Spinelli was about to step into the ambulance, he became aware that "somebody [was] screaming out loudly, cursing." He "turned around to see what was going on," and noticed defendant, standing six or seven feet away, "looking in [his] direction, screaming" and moving toward the ambulance. At that point, defendant reared back and threw a beer can at Spinelli's head. Spinelli ducked, and the can flew through the open door into the vehicle, hit the dashboard and "poured alcohol all over," splashing Aanonsen.
Then, as Spinelli attempted to enter the ambulance, having just planted his left foot on the outside step into the cabin, defendant hit him in the back of the head, grabbed his sweater collar and threw him to the ground, where he landed face up. Defendant "kneel[ed] down on one knee[,] right next to" Spinelli and struck his face two or three times with a closed hand. As Spinelli attempted to deflect these blows, the two men rolled on the ground. Spinelli did not throw any punches because he had "always been told, working this job, from the point [he] was hired, that [EMTs] are not allowed to raise our fists, or do anything in any way." Spinelli eventually managed to wriggle free from defendant, but just as he was getting to his feet, a second man struck him from behind on the right side of his head. This blow stupefied Spinelli, causing him to sink down on his hands and knees.
Aanonsen, who hit the emergency button to alert the dispatcher to an urgent situation the minute her partner came under attack, exited the ambulance in time to push the second man off Spinelli. She and that man fell to the ground. He hit her in the face, and she punched back. After another round of punches was exchanged, Aanonsen regained her feet. Bystanders were "trying to break [them] up," and her attacker moved off and stood by a nearby fence where he kept "yelling things. But there was no other physical altercation." Aanonsen then reentered the ambulance, and radioed a request for help before leaving again to assist her partner.
In the meantime, defendant had resumed his attack on Spinelli, "[s]traddl[ing]" him and "punching [him] about the head and face" with "[c]lose-handed fists" more than 15 times. Spinelli was still on his hands and knees, and was "basically trying to crawl away." He described himself as "dazed," and testified further that his head was by this time "really hurting." Defendant eventually broke off the assault, and the two EMTs scrambled into the ambulance. From the safety of their vantage point there, they observed the second man, who was never identified or caught, running down the street away from the ambulance; they saw defendant walk to a nearby building, where he sat down on the stoop.
When police and emergency personnel (two other ambulances and fire department supervisors) arrived one or two minutes later, the two EMTs got out of the ambulance and walked to the front of the vehicle. Spinelli pointed out defendant, who was still lingering nearby, to Officer Eduardo Mercado. As Mercado and his partner approached defendant, Mercado called out "Come over here." Defendant, who appeared intoxicated to Mercado, ignored this direction and turned to enter the building at 188 Butler Street, but Mercado and his partner intercepted and arrested him. Not until he reached his police vehicle with the handcuffed defendant in tow did Mercado notice bruises on his face and blood on his tee shirt. At the police station, defendant attributed the contusions to a fight earlier in the evening; he twice refused offers of medical assistance.
Spinelli endured swelling to his face and head and a deviated septum as a result of the beating he took; Aanonsen suffered from swelling to her right wrist and knee and bruises to the left side of her face, as well as dizziness, nausea and vomiting on the way to the hospital by ambulance for treatment. Spinelli was also afflicted with dizziness, nausea, vomiting and an uncommonly severe "splitting" headache several hours later in the day, necessitating a return visit to the hospital on Christmas Eve. He did not go back to work for three weeks; Aanonsen was absent from work for 10 days. For his role in this incident, defendant was charged with two counts of second-degree assault (Penal Law § 120.05 ) (one count for Spinelli and one for Aanonsen), a felony; and two counts of third-degree assault (Penal Law § 120.00 ) (one count for Spinelli and one for Aanonsen), a misdemeanor.
In a brief opening statement, defense counsel told the jury that defendant was "the victim here" -- i.e., he was the man with a bleeding face whom the EMTs were dispatched to treat (along with the woman with an injured hand), but they failed in their duty to render him aid and "[i]nstead . . . got him arrested." The People called ...