New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
April 13, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, --
Appeal from judgments of the District Court of Nassau County, First District (Erica L. Prager, J.), rendered April 30, 2010.
People v Vailes (Eddie)
Decided on April 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: MOLIA, J.P., NICOLAI and LaCAVA, JJ
The judgments convicted defendant, upon jury verdicts, of resisting arrest, criminal mischief in the fourth degree and unlawful possession of marihuana.
ORDERED that so much of the appeal as is from the judgment convicting defendant of unlawful possession of marihuana is dismissed as abandoned; and it is further,
ORDERED that the judgments convicting defendant of resisting arrest and criminal mischief in the fourth degree are affirmed.
Defendant was charged with, among other things, resisting arrest (Penal Law § 205.30) and criminal mischief in the fourth degree (Penal Law § 145.00 ). At a jury trial, there was undisputed testimony that, on August 7, 2007, defendant had been observed throwing rocks at the complainant's house, and, moments after, it was found that a storm door and window on the house had been broken. On August 13, 2007, defendant was again observed throwing rocks at the complainant's house, and the police were called and sought to arrest defendant for the August 7th incident. Although initially cooperative, defendant "flailed" his arms when the officers tried to handcuff him. The jury found defendant guilty of the charged offenses.
Defendant's argument that the complaint charging defendant with resisting arrest was never converted to a valid information is without merit. The complaint was properly converted upon the filing of the supporting deposition (see CPL 170.65 ).
Defendant's contention that the accusatory instrument charging him with resisting arrest is facially insufficient also lacks merit (see People v Casey, 95 NY2d 354, 360 ). Contrary to defendant's suggestion, the complainant's supporting deposition plainly established the contested element of the authorization of the underlying arrest (see People v Alejandro, 70 NY2d 133, 135 ; People v Davis, 31 Misc 3d 142[A], 2011 NY Slip Op 50844[U], *1 [App Term, 9th & 10th Jud Dists 2011]).
Regarding the information charging defendant with criminal mischief in the fourth degree, the complainant's deposition refers repeatedly to the property damaged as being his own. In addition, the logical implications of the acts the complainant observed are sufficient to allege the specific intent required (People v Clark, 19 Misc 3d 134[A], 2008 NY Slip Op 50698[U] [App Term 9th & 10th Jud Dists 2008]; see also People v Bracey, 41 NY2d 296, 301 ; People v Bergman, 70 AD3d 1494, 1494-1495 ). Thus, the allegations in the information sufficiently established defendant's lack of a possessory interest in the property harmed as well as his specific intent to commit the offense.
Defendant's contentions regarding the People's failure to seek a
Ventimiglia hearing and the admission of certain evidence (see People
v Ventimiglia, 52 NY2d 350 ) are unpreserved and, in any event,
do not require a reversal (see People v Anderson, 76 AD3d 980 ).
We note that evidence of uncharged crimes is admissible where its
probative value outweighs its potential prejudice and is offered for
some purpose other than to show defendant's bad character or to raise
an inference that defendant has a criminal propensity (see People v
Molineaux, 168 NY 264, 293 ; People v Ventimiglia, 52 NY2d at
359; People v Ben-Ezra, 19 Misc 3d 139[A], 2008 NY Slip Op 50892[U]
[App Term, 9th & 10th Jud Dists]). In this case, the court appropriately balanced
the probative value of the evidence regarding the rock-throwing incident of August 13, 2007
against the potential for prejudice and determined that the evidence was admissible, as it
completed the narrative leading up to defendant's arrest on August 13 (see People v Henry, 166 AD2d
720 ; see also People v Devaughn, 84 AD3d 1394 ).
Defendant's contention that the evidence of guilt was legally insufficient is not preserved (see People v Rivera, 74 AD3d 993 ). In any event, viewing the evidence in the light most favorable to the People (see People v Hawkins, 11 NY3d 484, 493 ), we find that it was legally sufficient to sustain defendant's conviction of both charges. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 347 ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888, 890 ; People v Bleakley, 69 NY2d 490, 495 ). Upon a review of the record, we are satisfied that the verdict was not against the weight of the evidence with respect to either of the charges.
Accordingly, the judgments convicting defendant of resisting arrest and criminal mischief in the fourth degree are affirmed.
Molia, J.P., Nicolai and LaCava, JJ., concur.
Decision Date: April 13, 2012
© 1992-2012 VersusLaw Inc.