PEOPLE v. ADAIR

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

The PEOPLE of the State of New York, Respondent, v. Luther ADAIR, Defendant–Appellant.

868

Decided: November 15, 2019

PRESENT:  WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (DARIENN P. BALIN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal contempt in the first degree (Penal Law § 215.51[b][v]), obstructing governmental administration in the second degree (§ 195.05), and resisting arrest (§ 205.30).  We affirm.

Viewing the evidence in light of the elements of criminal contempt in the first degree as charged to the jury, we reject defendant's contention that the verdict convicting him of that crime is against the weight of the evidence with respect to the element of intent (see generally People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  Defendant's own trial testimony concerning the incident was largely consistent with the victim's account, and the jury was entitled to infer the requisite intent from that testimony.

We reject defendant's further contention that his conviction of obstructing governmental administration in the second degree is unsupported by legally sufficient evidence, and we are not bound by the People's incorrect concession to the contrary (see People v. Berrios, 28 N.Y.2d 361, 366–367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971];  People v. Colsrud, 144 A.D.3d 1639, 1640, 42 N.Y.S.3d 500 [4th Dept. 2016], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017]).  At trial, two police officers testified that defendant “pull[ed] away” from them after they first apprehended him during a domestic disturbance, and defendant himself testified that he “struggle[d]” with the officers because he was “trying to get away.”  Inasmuch as the officers were justified in forcibly detaining defendant in order to quickly confirm or dispel their reasonable suspicion of his alleged involvement in the domestic disturbance (see People v. McKee, 174 A.D.3d 1444, 1445, 105 N.Y.S.3d 747 [4th Dept. 2019]), the testimony of the officers and defendant himself is legally sufficient to support the jury's finding that defendant “attempt[ed] to prevent a public servant from performing an official function [i.e., investigating the domestic incident] by means of ․ physical ․ interference ” (Penal Law § 195.05 [emphasis added];  see Matter of Thomas L., 4 A.D.3d 295, 295, 771 N.Y.S.2d 663 [1st Dept. 2004];  People v. Tarver, 188 A.D.2d 938, 938, 591 N.Y.S.2d 907 [3d Dept. 1992], lv denied 81 N.Y.2d 893, 597 N.Y.S.2d 955, 613 N.E.2d 987 [1993]).  Moreover, viewing the evidence in light of the elements of obstructing governmental administration in the second degree as charged to the jury, we conclude that the verdict with respect to that crime is not against the weight of the evidence (see Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1).  Given our determination, we necessarily reject defendant's challenges to the legal sufficiency and weight of the evidence underlying his conviction of resisting arrest inasmuch as those contentions “ ‘depend[ ] on the success of’ ” his challenges to his conviction of obstructing governmental administration (People v. Simpson, 173 A.D.3d 1617, 1618, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Sept. 5, 2019];  see generally People v. Alejandro, 70 N.Y.2d 133, 135, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987];  People v. Graves, 163 A.D.3d 16, 23, 78 N.Y.S.3d 613 [4th Dept. 2018]).

Finally, to the extent that defendant remains subject to the sentence imposed in this case, we conclude that the sentence is not unduly harsh or severe.