PEOPLE v. GERECKE

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jamie L. GERECKE, also known as McLaurin, Defendant-Appellant.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., SCUDDER, GORSKI, AND SMITH, JJ. David P. Elkovitch, Auburn, for Defendant-Appellant. Jamie L. Gerecke, Defendant-Appellant pro se. James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting her upon a jury verdict of assault in the second degree (Penal Law § 120.05 [3] ), assault in the third degree (§ 120.00[1] ), obstructing governmental administration in the second degree (§ 195.05) and resisting arrest (§ 205.30).   We reject the contention of defendant that the police officers illegally entered her home in order to arrest her son Brandon, who was the subject of an arrest warrant.   It is well settled that, “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within” (Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639).   Here, the record establishes that Brandon resided in defendant's house and that the arresting officer reasonably believed that Brandon had just entered the house.

 We also reject defendant's contention that the evidence of physical injury is legally insufficient to support the conviction of assault in the second and third degrees.   The injured police officer testified that, upon being struck in the head by defendant, he “[saw] stars” and was temporarily disoriented.   He further testified that it was the hardest blow that he had ever sustained and that he was in great pain.   Each assault conviction required the jury to find that defendant caused physical injury to the officer, and that term is defined in relevant part as “substantial pain” (Penal Law § 10.00 [9] ).   We conclude that the jury was entitled to credit the testimony of the officer and thus to find that he suffered substantial pain (see People v. Williams, 203 A.D.2d 608, 610 N.Y.S.2d 613, lv. denied 83 N.Y.2d 973, 616 N.Y.S.2d 26, 639 N.E.2d 766;  see also People v. Goico, 306 A.D.2d 828, 828-829, 761 N.Y.S.2d 562).   The failure of the officer to seek medical treatment or to take off any time from work is not dispositive in determining whether he sustained a physical injury, inasmuch as “pain is subjective and different persons tolerate it differently” (People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951).

Contrary to the further contention of defendant, County Court's jury charge “as a whole adequately conveyed to the jury the appropriate standards” (People v. Adams, 69 N.Y.2d 805, 806, 513 N.Y.S.2d 381, 505 N.E.2d 946).   Although defendant contends that the court erred in instructing the jury on the scope of the officer's lawful duty, we conclude under the circumstances of this case that the court in fact was required to do so (see People v. McDonald, 291 A.D.2d 832, 737 N.Y.S.2d 446, lv. dismissed 97 N.Y.2d 757, 742 N.Y.S.2d 618, 769 N.E.2d 364).

 Defendant failed to object to the allegedly improper polling of the jury before the jury was discharged and thus failed to preserve for our review her contention that the court erred in denying that part of her CPL article 330 motion to set aside the verdict based on that alleged error (see People v. Mercado, 91 N.Y.2d 960, 672 N.Y.S.2d 842, 695 N.E.2d 711;  People v. Bembry, 209 A.D.2d 270, 618 N.Y.S.2d 344, affd. 85 N.Y.2d 932, 628 N.Y.S.2d 45, 651 N.E.2d 913).   The court properly rejected the remaining contentions of defendant in support of her motion because those contentions do not raise a “question of outside influence but, rather, [defendant] seeks to impeach the verdict by delving into the tenor of the jury's deliberative processes” (People v. Karen, 17 A.D.3d 865, 867, 793 N.Y.S.2d 273, lv. denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269;  see People v. Young, 197 A.D.2d 874, 875, 602 N.Y.S.2d 285, lv. denied 82 N.Y.2d 854, 606 N.Y.S.2d 606, 627 N.E.2d 528;  People v. Redd, 164 A.D.2d 34, 37, 561 N.Y.S.2d 439;  cf. People v. Brown, 48 N.Y.2d 388, 393-395, 423 N.Y.S.2d 461, 399 N.E.2d 51).

 We agree with defendant, however, that the evidence is legally insufficient to support the conviction of obstructing governmental administration in the second degree as charged in the indictment and amplified by the bill of particulars.   The indictment, as amplified by the bill of particulars, charged defendant with interfering with the arrest of her son Brandon by police officers.   The arresting officer testified that he never saw Brandon, however, and the record establishes that he was arresting a different person when defendant allegedly interfered with the performance of his duties.   The prosecutor made no request to amend the bill of particulars.   Consequently, the evidence is legally insufficient to establish that defendant committed the crime of obstructing governmental administration as charged in the indictment and amplified by the bill of particulars (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and we therefore modify the judgment accordingly.

We have considered the remaining contentions of defendant, including those raised in her pro se supplemental brief, and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convictingdefendant of obstructing governmental administration in the second degree and dismissing count three of the indictment and as modified the judgment is affirmed, and the matter is remitted to Cayuga County Court for proceedings pursuant to CPL 460.50(5).

MEMORANDUM: