Scott Banks, Hempstead, NY (Jeremy L. Goldberg, David
Bernstein, and Argun Ulgen of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, NY (Daniel
Bresnahan and Joseph Mogelnicki of counsel), for respondent.
C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, HECTOR
D. LASALLE, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court, Nassau
County (Paradiso, J.), rendered March 4, 2015, convicting him
of assault in the second degree, criminal possession of a
controlled substance in the seventh degree, and resisting
arrest, upon a jury verdict, and imposing sentence. The
appeal brings up for review the denial, after a hearing
pursuant to a stipulation in lieu of motions, of the
suppression of physical evidence.
that the judgment is affirmed.
police officer responded to a report of a large and
disorderly group near an apartment complex, he saw the
defendant allegedly holding what appeared to be an open
bottle of beer. A police officer was injured during a
struggle to subdue and arrest the defendant, and a small
amount of crack cocaine was recovered from the
defendant's pocket. The defendant was charged with
several crimes arising from the incident, and he moved to
suppress the crack cocaine. After the County Court held a
suppression hearing, it denied the motion. The defendant
proceeded to trial, where he was convicted, upon a jury
verdict, of assault in the second degree (Penal Law §
120.05), criminal possession of a controlled substance in
the seventh degree (Penal Law § 220.03), and resisting
arrest (Penal Law § 205.30). The defendant, however, was
acquitted of violating the Village of Freeport's
"open container" ordinance (see Code of
the Village of Freeport § 155-11[A]) and of one of the
two counts of assault in the second degree. On appeal, the
defendant raises several claims regarding, among other
things, the denial of his motion to suppress the crack
cocaine and the legal sufficiency and weight of the evidence.
to the testimony at the suppression hearing, a police officer
observed the defendant standing in the middle of a street
holding what appeared to be a half-full bottle of beer, in
violation of section 155-11(A) of the Code of the Village of
Freeport. After the officer asked the defendant several
questions, the defendant took several steps away, and the
officer put his hand on the defendant's back to keep him
from leaving. The defendant flailed his arm at the officer
and turned fully away from him as if about to flee. Several
officers then grabbed the defendant, and the defendant and
the officers engaged in a struggle that lasted several
on the evidence that the County Court found to be credible,
the police had probable cause to arrest the defendant for
violating the Village's open-container law (see
CPL 140.10; see also People v Lewis, 50 A.D.3d 595,
595). Although the officer who first observed the defendant
may have initially intended only to issue a summons (cf.
People v Miranda, 19 N.Y.3d 912, 913 n), the situation
changed when the struggle began, and the police clearly were
in the course of a lawful arrest by the time they recovered
the crack cocaine from the defendant's pocket (see
People v Canal, 24 A.D.3d 1034, 1035; cf. People v
Kalikow, 90 A.D.3d 1558, 1558-1559; People v
Bothwell, 261 A.D.2d 232, 235). Accordingly, the seizure
of the crack cocaine from the defendant was lawful, and the
court properly denied suppression of the crack cocaine
(see People v Lewis, 50 A.D.3d at 595-596;
People v Canal, 24 A.D.3d at 1035; People v
Taylor, 294 A.D.2d 825, 826).
defendant's contentions that the prosecution failed to
present legally sufficient evidence of the elements of
"lawful duty" of second-degree assault (Penal Law
§ 120.05; see Matter of Kalexis R., 85
A.D.3d 927, 928), and "authorized arrest" of
resisting arrest (Penal Law § 205.30; see Matter of
Kalexis R., 85 A.D.3d at 928) are unpreserved for
appellate review (see People v Hawkins, 11 N.Y.3d
484, 492). In any event, viewing the evidence in the light
most favorable to the prosecution (see People v
Contes, 60 N.Y.2d 620), we find that it was legally
sufficient to prove those elements beyond a reasonable doubt.
Further, viewing the evidence in the light most favorable to
the prosecution (see id.), we find that it was
legally sufficient to establish the "physical
injury" element of the crime of assault in the second
degree beyond a reasonable doubt (Penal Law § 10.00).
Upon the exercise of our factual review power (see
CPL 470.15), we are satisfied that the verdict of guilt as
to the crimes of which the defendant was convicted was not
against the weight of the evidence (see People v
Romero, 7 N.Y.3d 633). The defendant's acquittal of
the open-container violation does not, given the entire
record of the trial, convince us otherwise (see People v
Martin, 222 A.D.2d 528, 529; see generally People v
Rayam, 94 N.Y.2d 557, 563 n; cf. People v
Lindsey, 52 A.D.3d 527, 529-530; cf. generally
People v Yarrell, 75 N.Y.2d 828, ).
defendant's remaining contention is without merit.
BALKIN, J.P., AUSTIN, SGROI and ...