PEOPLE v. KOHORST (2006)

Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[3] ).   As part of his omnibus motion, defendant challenged his warrantless arrest in his home, contending that the police acted unlawfully by entering the home without a warrant, and County Court denied that part of his omnibus motion without conducting a Payton hearing.   Following a substitution of defense counsel, defendant's substituted defense counsel moved for reconsideration of that part of defendant's omnibus motion, and the court denied the motion.   Defendant now contends on appeal that his original defense counsel was ineffective because he failed to articulate sufficient facts in support of that part of the omnibus motion concerning the Payton issue.   We reject that contention, inasmuch as the record establishes that defendant's original defense counsel provided meaningful representation with respect to that part of the omnibus motion (see generally People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   We also reject defendant's further contention that the court erred in summarily denying the motion for reconsideration of that part of defendant's omnibus motion concerning the Payton issue (see People v. McQueen, 307 A.D.2d 765, 766, 762 N.Y.S.2d 562, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 406, 799 N.E.2d 629).   In any event, even assuming, arguendo, that defendant had a reasonable expectation of privacy on his porch and thus that there was a Payton violation, we would nevertheless conclude that the violation would not warrant suppression of what the police observed and heard following that alleged violation.   When the police confronted defendant in his home following the alleged Payton violation, defendant committed a new and independent crime when he interfered with the police officers' arrest of his wife and assaulted a police officer (see People v. Ellis, 4 A.D.3d 877, 878, 771 N.Y.S.2d 471, lv. denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200, 3 N.Y.3d 673, 784 N.Y.S.2d 12, 817 N.E.2d 830).

Defendant's conviction of assault is supported by legally sufficient evidence (see People v. Bernier, 279 A.D.2d 701, 702, 719 N.Y.S.2d 186, lv. denied 96 N.Y.2d 797, 726 N.Y.S.2d 375, 750 N.E.2d 77), and the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We have examined defendant's remaining contention and conclude that it is lacking in merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: