New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
March 8, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
DEBORAH CLARKE, APPELLANT.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ira H. Margulis, J.), rendered April 29, 2009.
People v Clarke (Deborah)
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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., WESTON and RIOS, JJ
The judgment convicted defendant, upon a jury verdict, of resisting arrest and disorderly conduct.
ORDERED that the judgment of conviction is affirmed.
A court officer arrested defendant after she had allegedly ignored his instructions to refrain from using a cell phone in a stairwell of the Queens County Criminal Court building and had engaged in a profanity-laced tirade in the courthouse's main entrance. When the officer removed defendant from the courthouse, defendant attempted to punch the officer in the face and resisted being placed in handcuffs. The accusatory instrument charged her with obstructing governmental administration in the second degree (Penal Law § 195.05), resisting arrest (Penal Law § 205.30), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ), disorderly conduct (Penal Law § 240.20 ) and harassment in the second degree (Penal Law § 240.26 ).
During the jury trial, defense counsel sought to exculpate defendant by introducing copies of defendant's cell phone call logs into evidence. The Criminal Court refused to admit the call logs on the ground that defense counsel had failed to authenticate them. The Criminal Court noted that defense counsel had not submitted any evidence that the call logs corresponded to the cell phone defendant had allegedly used inside the courthouse. Thereafter, defendant testified that she had never used her cell phone after she had entered the courthouse and that the cell phone she had brought into the courthouse was the only cell phone she owned. She further stated that the call logs corresponded to the cell phone that she had brought into the courthouse.
Subsequently, the jury convicted defendant of resisting arrest and disorderly conduct, acquitting her of the remaining charges.
Defendant's challenge to the legal sufficiency of the evidence supporting her conviction of disorderly conduct is unpreserved for appellate review since defense counsel never made a specific objection at trial regarding the People's alleged failure to prove that defendant's conduct was public in nature (see CPL 470.05 ; People v Gray, 86 NY2d 10 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 ), we find that it was legally sufficient to establish that defendant engaged in disorderly conduct beyond a reasonable doubt (see People v Felix, 26 Misc 3d 146[A], 2010 NY Slip Op 50476[U] [App Term, 1st Dept 2010]; compare People v Jackson, 18 Misc 3d 134[A], 2008 NY Slip Op 50169[U] [App Term, 1st Dept 2008]), as her disruptive behavior "recklessly created a substantial risk of a potential or immediate public problem'" (People v Thomas, 32 Misc 3d 132[A], 2011 NY Slip Op 51338[U] [App Term, 1st Dept 2011], quoting People v Weaver, 16 NY3d 123, 128 ).
Additionally, the information charging defendant with resisting arrest was facially sufficient. Although, in order to be facially sufficient under Criminal Procedure Law section 100.40 (1) (c), an accusatory instrument must allege facts that would establish, if true, every element of the offense charged, here, resisting arrest, an accusatory instrument does not, in order to meet this facial sufficiency test, have to allege facts that would establish, if true, every element of the offense giving rise to the arrest (People v Clergeot, 20 Misc 3d 87, 89 [App Term, 9th & 10th Jud Dists 2008]; see People v Alejandro, 70 NY2d 133, 135 ). Here, the accusatory instrument needed to allege only that the arrest was authorized, by setting forth facts establishing that the arresting officer had probable cause to believe that defendant had committed an offense in his presence (see CPL 140.10  [a]; Wallace v City of Albany, 283 AD2d 872, 873 ). The allegations in the information set forth facts establishing that the officer had probable cause to arrest defendant for, at the very least, disorderly conduct (see Penal Law § 240.20 ).
Defendant's contention that so much of the verdict as convicted her of resisting arrest was repugnant to her acquittal of obstructing governmental administration in the second degree is also unpreserved for appellate review since defendant did not raise such an objection before the court discharged the jury (see CPL 470.05 ; People v Alfaro, 66 NY2d 985, 987 ; People v Satloff, 56 NY2d 745, 746 ; People v Jackson, 19 AD3d 614, 615 ). In any event, the claim is without merit (cf. People v Putt, 303 AD2d 992, 993 ).
We also find that defendant received the effective assistance of counsel (see Strickland v Washington, 466 US 668 ; People v Benevento, 91 NY2d 708 ). Trial counsel apparently sought to undermine the charge of obstructing governmental administration in the second degree by establishing that defendant had never used her cell phone after she had entered the courthouse, thereby also discrediting the court officer's testimony with respect to the remaining charges. While defendant correctly asserts that trial counsel failed to properly introduce the cell phone call logs into evidence, counsel, nevertheless, successfully "pursued a defense suggesting that the People's witnesses were either mistaken or incredible" (People v Green, 174 AD2d 511, 513 ), as evidenced by defendant's acquittal on the charges of obstructing governmental administration in the second degree, harassment in the second degree and attempted assault in the third degree. "That the defense was not fully successful," and that defendant was convicted of the remaining charges, are "not . . . indication[s] of ineffective assistance of counsel" (id.; see People v Thomas, 244 AD2d 271 ). Similarly, trial counsel did not improperly limit defendant's direct testimony to her use and ownership of the cell phone as such testimony comported with the trial strategy and effectively minimized the scope of the People's cross-examination. In any event, "[h]indsight does not elevate counsel's unsuccessful trial strategies to ineffective assistance of counsel" (People v Dashosh, 59 AD3d 731, 732 ). Accordingly, the judgment of conviction is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: March 08, 2012
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