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The People of the State of New York v. Hamed Adilovic

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 8, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT, --
v.
HAMED ADILOVIC,
APPELLANT.

Appeal from judgments of the Justice Court of the Town of Cortlandt, Westchester County (Gerald M. Klein, J.), rendered April 27, 2009.

People v Adilovic (Hamed)

Decided on March 8, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The judgments convicted defendant, upon jury verdicts, of resisting arrest, disorderly conduct, aggravated driving while intoxicated, driving while intoxicated, driving on the shoulder, passing a red light, driving across hazard markings, and failing to use a designated lane, respectively.

ORDERED that the judgments of conviction are affirmed.

In the early evening of September 18, 2007, two police officers on motor patrol observed defendant operating his vehicle erratically on State Route 9 in the Town of Cortlandt, crossing a solid white fog line, then the double yellow lines dividing the directions of travel, and finally passing through a red traffic light. After the officers stopped defendant, they noticed that he exhibited various indicia of intoxication. Defendant subsequently failed roadside sobriety tests. One of the officers announced that defendant was under arrest and handcuffed defendant's right hand, whereupon defendant attempted to break away. When the second officer intervened to assist the first officer, defendant twisted his body, tucked his arms beneath his body, ignored repeated requests to stop resisting and to release his arms and, instead, flailed around and attempted to free himself from the officers' grasp. Defendant was finally restrained only after a scuffle which resulted in all three men falling to the ground. Defendant consented to a test of his blood alcohol content, which proved to be .26 of one per centum by weight. After a jury trial, defendant was convicted of resisting arrest (Penal Law § 205.30), disorderly conduct (Penal Law § 240.20 [1]), aggravated driving while intoxicated (Vehicle and Traffic Law § 1192 [2-a] [a]), driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving on the shoulder (Vehicle and Traffic Law § 1131), passing a red light (Vehicle and Traffic Law § 1111 [d] [1]), driving across hazard markings (Vehicle and Traffic Law § 1128 [d]), and failing to use a designated lane (Vehicle and Traffic Law § 1128 [c]).

On appeal, defendant argues that the Justice Court's admission into evidence of the calibration and maintenance records of the instrument used to measure his blood alcohol content violated his federal and state Confrontation Clause rights (see Crawford v Washington, 541 US 36 [2004]), that the court failed to respond meaningfully to jury notes during deliberations, and that the proof of resisting arrest and disorderly conduct was legally insufficient to sustain the convictions, which were, in any event, against the weight of the evidence. The judgments of conviction should be affirmed.

Confrontation Clause-based challenges to the admissibility of a testing machine's calibration and maintenance documents under the business records exception to the hearsay rule (CPLR 4518) have been considered and rejected by the courts (see e.g. People v Pealer, 89 AD3d 1504 [2011]; People v Damato, 79 AD3d 1060 [2010]; People v Lent, 29 Misc 3d 14 [App Term, 9th & 10th Jud Dists 2010]; People v Lebrecht, 13 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2006]; see also People v Brown, 13 NY3d 332, 340 [2009]).

Defendant's claim, that the Justice Court failed to respond meaningfully to the jury's three requests for clarification of certain charges, by rereading the relevant portions of the charges already given, is not preserved for appellate review (CPL 470.05 [2]; People v Starling, 85 NY2d 509, 516 [1995]). Defendant's counsel made no objection to the court's statements that it intended to respond to the requests in that manner and did not comment on the court's recitations, even when one of the recitations was incomplete (see People v Smith, 64 AD3d 619, 620 [2009]; People v Brunson, 1 AD3d 375 [2003]; People v Berger, 7 Misc 3d 5, 6 [App Term, 2d & 11th Jud Dists 2004]; see also People v Lykes, 81 NY2d 767, 771 [1993]). In any event, a rereading of a charge with respect to which a jury requests clarification is not necessarily error (People v Malloy, 55 NY2d 296, 302-303 [1982]), and where, as here, the charges in question were clear and accurate on the law, a rereading constitutes a meaningful response (e.g. People v Ariza, 77 AD3d 844, 845 [2010]; People v Smith, 64 AD3d at 620; People v Leon, 48 AD3d 701 [2008]). On this record, and in light of the overwhelming proof of defendant's intoxication, the court's failure to reread a portion of the charge in relation to driving while impaired was at most "non-prejudicial and harmless" error (People v Rivera, 125 AD2d 421, 422 [1986]).

We find that the evidence was legally sufficient to establish the state of mind elements of resisting arrest and disorderly conduct and that the convictions of these offenses were not against the weight of the evidence.

"[A]n intoxicated person can form the requisite criminal intent to commit a crime and it is for the trier of fact to decide if the extent of the intoxication acted to negate the element of intent" (People v Chafla-Sanaicela, 84 AD3d 828, 829 [2011], quoting People v Barresi, 80 AD3d 709, 710 [2011] and People v Flores, 40 AD3d 876, 877 [2007]). Intent may be inferred from a defendant's conduct and the totality of the circumstances (People v Bracey, 41 NY2d 296, 303 [1977]). With respect to resisting arrest, it has long been the rule that resisting does not require proof of force, merely that the defendant "engage[d] in some conduct with the intent of preventing the officer from effecting an authorized arrest of himself or another person" (People v Stevenson, 31 NY2d 108, 112 [1972] [citation omitted]). Further, it is not necessary that a defendant be informed that he was being arrested, "it is sufficient that such knowledge was inferable from the surrounding facts and circumstances" (People v Gray, 189 AD2d 922, 923 [1993]). The proof must simply suffice for the factfinder to "infer that defendant knew that he was being arrested and that he possessed the requisite intent for resisting such arrest" (People v Clark, 241 AD2d 710 [1997]). Here, although evidently quite intoxicated, defendant must have known that when the police officer placed handcuffs on his right hand he was being arrested, and that, by moving away from the officer, compressing his body and arms, ignoring both officers' orders that he submit peacefully to the physical restraint they were trying to impose, and engaging in a violent struggle with two police officers that ended only after all three had fallen to the ground, that he intended to resist that process. Viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), we find that the proof of defendant's conduct, under the totality of the circumstances, was legally sufficient to establish that defendant's arrest was lawful, that he knew he was being arrested, and that his actions manifested his intent to resist that arrest.

With respect to disorderly conduct, "the disruptive behavior proscribed by [the] disorderly conduct statute must be of public rather than individual dimension" (People v Weaver, 16 NY3d 123, 127 [2011], quoting People v Munafo, 50 NY2d 326, 331 [1980]), and the proof must evidence defendant's intent or reckless disregard of the risk of a public inconvenience or alarm, which occurs "only when the situation extends beyond the exchange between the individual disputants" (People v Weaver, 16 NY3d at 128). However, "there is no per se requirement that members of the public . . . be involved or react to the incident," only that the conduct "results in public inconvenience, annoyance or alarm if the conduct recklessly creates a risk of such public disruption" (id.). While there was no proof that any members of the public observed the roadside scuffle between defendant and the officers, there was at least a risk that other drivers would observe the violent encounter and be alarmed thereby (see People v Pritchard, 27 NY2d 246, 248 [1970]).

Finally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), and according the appropriate deference to the jury's credibility determinations, based on its particular opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Mateo, 2 NY3d 383, 415 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the convictions of resisting arrest and disorderly conduct were not against the weight of the evidence (People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgments of conviction are affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.

Decision Date: March 08, 2012

20120308

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