[User]
Create a takeaway summary for the following court decision, focusing on the topic of Constitutional Claims and the subtopic of Fair Trial. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Jackson 2024 NY Slip Op 06169 [233 AD3d 495] December 10, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Tommy Jackson, Appellant. Caprice R. Jenerson, Office of Appellate Defender, New York (Ronald Zapata of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Sarah Lubin of counsel), for respondent. Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered December 2, 2021, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree, and sentencing him to a term of 4 1/2 years, unanimously affirmed. Defendant's argument that the hearing court violated his right to a fair trial by acting as an advocate for the prosecution ( see People v Arnold , 98 NY2d 63 [2002]) is unpreserved and we decline to consider it in the interest of justice ( see People v Guadalupe , 254 AD2d 69 [1st Dept 1998], lv denied 92 NY2d 982 [1998]). As an alternative holding, we find that the two questions the court asked, which elicited the name of the 911 caller to whom the arresting officer spoke, did not improperly intrude on the prosecutor's function ( see People v Mack , 181 AD3d 427 , 428 [1st Dept 2020], lv denied 35 NY3d 1028 [2020]) and provides no basis to disturb the court's findings that the arresting officers had reasonable suspicion to stop and frisk defendant, and probable cause to arrest him. We perceive no basis for reducing defendant's sentence. We have considered defendants remaining contentions and find them unavailing. Concur—Renwick, P.J., Friedman, Shulman, Pitt-Burke, Rosado, JJ.

[Assistant]
Claim that judge acted "as an advocate for the prosecution" was both
unpreserved and without merit. Judge asked just 2 questions eliciting the
name of the caller to whom the arresting offier-witness had spoken.
Questions "did not improperly intrude on the prosecutor's function..., and
provide no basis to disturb the court's findings that the arresting officers
had reasonable suspicion to stop and frisk defendant, and probable cause
to arrest him.
"


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Constitutional Claims and the subtopic of Right to Present a Defense. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Dixon 2024 NY Slip Op 05176 [42 NY3d 609] October 22, 2024 Troutman, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Kerbet Dixon, Appellant. Argued September 10, 2024; decided October 22, 2024 People v Dixon , 211 AD3d 1030 , affirmed. {**42 NY3d at 612} OPINION OF THE COURT Troutman, J. The primary issue before us is whether this pro se defendant was denied his constitutional right to present a defense by the People's monitoring of the telephone calls that he made to his trial witnesses from jail. Under the unique circumstances of this case, we hold that defendant's constitutional right to present a defense was not violated. Because that contention and defendant's remaining contentions do not require reversal or modification, we affirm. I. In 2011, "A.M." and "J.H.," two children under 11 years old, accused defendant of repeatedly sexually assaulting them between 2007 and 2009, and a third complainant, "D.M.," accused defendant of raping her during that same period when she was under the age of 17. After one of the complainants disclosed that defendant had video-recorded the assaults and shown her child pornography during the course of the assaults, {**42 NY3d at 613} the police obtained a search warrant and seized defendant's home computers. Forensic examination of the computers revealed hundreds of images of child pornography and an encrypted, 10-gigabyte "TrueCrypt" container that the police were unable to access, even with the assistance of the Secret Service, FBI, and Department of Homeland Security. [FN1] The examination further [*2] revealed that Google alerts on one of the computers had been set for specific search terms eerily similar to aspects of the assaults. Proceedings commenced in March 2012 by the filing of an indictment charging defendant with, inter alia, one count of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [a]) pertaining to the conduct against A.M., another count of course of sexual conduct against a child in the first degree ( see id .) pertaining to the conduct against J.H., two counts of rape in the third degree ( id. § 130.25) pertaining to the conduct against D.M., and 150 counts each of promoting and possessing a sexual performance by a child ( id. §§ 263.15, 263.16). Defendant posted bail and was released. After defendant unsuccessfully sought to sever the child pornography counts from the sexual assault counts pursuant to CPL 200.20, a second indictment charged him with an additional 334 counts of possessing a sexual performance by a child (Penal Law § 263.16). Upon the People's unopposed application, Supreme Court joined the second indictment for trial with the first. The court assigned counsel, as well as a computer expert and an investigator to assist the defense. Defendant eventually became dissatisfied with his assigned counsel, as he had with two prior attorneys, and, in July 2013, the court granted defendant's request to proceed pro se and continued defense counsel's assignment in the role of a "legal advisor." The trial commenced in late January 2014. The People's first few witnesses included A.M. and J.H, who were ages 11 and 13 at the time of trial. At one point during trial, on a Thursday, the court decided to take an extended lunch recess to give the People's next witness time to arrive from out of state. Defendant asked who that witness would be. The court asked the {**42 NY3d at 614} prosecutor if there were any concerns about witness intimidation. The prosecutor said that there were no such concerns and disclosed that the next witness would be D.M. After the recess, the court stated that D.M.'s arrival had been delayed and adjourned for the day. On Friday morning, the prosecutor brought the court's attention to a blog posted to the Internet Thursday evening from an IP address associated with the residence of defendant's sister, where defendant was living during trial. The blog made sexually disparaging comments about D.M., identified her by name as a complainant in a sex crime case, and included a picture of her in underwear. The prosecutor said that the picture was one that defendant had previously disclosed to the People. Defendant stated that he did not post the blog but knew who did. The prosecutor asked the court to remand defendant to jail, stating that the complainant was "devastated" and "in tears . . . waiting to be called to testify." The prosecutor added that defendant's actions "had the chilling effect" that defendant intended. The court concluded that defendant either posted the blog himself, or assisted the person who posted it, in violation of Civil Rights Law § 50-b. As a result, the court ordered defendant to be remanded. On Monday morning, defendant protested that it was difficult to prepare his witnesses for trial because he was in jail with no access to his files or witnesses, and he moved for a mistrial. The court stated that defendant had the assistance of his family and his legal advisor. The prosecutor added that defendant had been afforded not only a legal advisor but an investigator and a computer expert to assist him with preparation of his defense, at public expense. The People later called as a witness the detective and computer crimes specialist who conducted the forensic examination of defendant's computers, and he testified to the existence of the encrypted, 10-gigabyte TrueCrypt container that was installed on one of the computers, among other findings. After the testimony of two more witnesses, the People rested. Defendant's first witness was his daughter; the court gave defendant the opportunity to speak to her alone in the courtroom before she testified. It became apparent during the testimony that defendant intended to introduce in evidence a recorded conversation between his daughter and A.M., in which A.M. allegedly recanted her accusations. Although the daughter recorded the conversation two years earlier, the defense {**42 NY3d at 615} never disclosed the recording to the People, with the defendant insisting that he had just become aware of the recording himself. During voir dire, the daughter testified that she simply asked A.M. questions and told her to be honest. The daughter admitted, however, that she "had to record it a couple of times" and delete portions of it because A.M. was not answering the questions out loud at first. Though the court was "sure" that defendant was aware of the existence of the recording and that defendant's tactic was an "ambush," the court permitted the recording to be played for the jury. On cross-examination, the People asked the daughter about a phone conversation she had with the incarcerated defendant the week before. The daughter admitted, based on the contents of that conversation, that defendant was not only familiar with TrueCrypt but also that he gave her the password for it over the phone. The daughter further testified that defendant told her to come visit him in jail so that he could "grill" her before she [*3] testified. When the People sought to refresh the daughter's recollection about further details of the call, defendant agreed to allow the call to be played outside of the jury's presence and stipulated to the contents of the call. The People were permitted to call A.M. out of order to testify in rebuttal about the circumstances of her alleged recantation. She testified that, two years earlier (when she was nine years old) defendant's daughter drove her to Toys "R" Us to pick out toys for her Christmas list. While parked outside the store, the daughter questioned A.M. about her accusations against defendant. When A.M. gave the "[w]rong" answers, the daughter instructed A.M. to say "no" when the daughter shook her head and "yes" when the daughter nodded. A.M. testified that her statements on the recording were false and that her trial testimony was true. The defense case proceeded, with defendant at one point protesting that it was difficult to prepare his witness with the prosecutor listening to his calls. The court stated that when defendant wanted to speak to his witnesses, the court made the prosecutors leave the courtroom. Defendant protested that he still did not have enough time to prepare. The court responded that the case had "gone on for years": "You've had years to prepare the case." Defendant asked to adjourn for the weekend so he could have more time to prepare his witnesses. The court denied the request but noted that there was only one more day of scheduled testimony before the weekend and stated that it {**42 NY3d at 616} would revisit the matter the next morning. The next day, it was agreed that defendant would testify in his own defense. Defendant called one character witness to provide brief testimony and spent the rest of the day testifying in narrative fashion. On the morning of the last day of testimony, defendant objected to the People listening to his calls, arguing that it gave the People an "unfair advantage." The court rejected defendant's argument. The jury found defendant guilty of only one felony sexual assault count—course of sexual conduct against a child pertaining to conduct against J.H.—but also found him guilty of all 634 child pornography counts. The jury deadlocked on the count of course of sexual conduct against a child pertaining to A.M. and the counts of rape pertaining to D.M. At sentencing, defendant entered an Alford plea to the deadlocked counts in exchange for concurrent time and the court's promise that it would vacate the plea if the judgment were reversed on appeal. The Appellate Division affirmed the judgments (211 AD3d 1030 [2d Dept 2022]), and a Judge of this Court granted leave to appeal (40 NY3d 933 [2023]). II. "Criminal defendants must be afforded 'a meaningful opportunity to present a complete defense' " ( People v Deverow , 38 NY3d 157 , 164 [2022], quoting Crane v Kentucky , 476 US 683, 690 [1986]). That right, which encompasses the right to offer the testimony of witnesses, is "a fundamental element of due process of law" ( Washington v Texas , 388 US 14, 19 [1967]; see Deverow , 38 NY3d at 164; US Const Sixth, Fourteenth Amends). Criminal defendants also have a constitutional right to self-representation ( see McKaskle v Wiggins , 465 US 168, 174 [1984]). The right to self-representation exists not only "to affirm the dignity and autonomy of the accused," but also "to allow the presentation of what may, at least occasionally, be the accused's best possible defense" ( id. at 176-177; see People v Rosen , 81 NY2d 237, 245 [1993]). To that end, pro se defendants "must be allowed to control the organization and content of [their] own defense" and "must be accorded 'compulsory process for obtaining witnesses in [their] favor' " ( McKaskle , 465 US at 174, quoting US Const Sixth Amend; see Rosen , 81 NY2d at 244). Thus, an incarcerated pro se defendant has a right to prepare and present a defense no less than any other defendant. {**42 NY3d at 617} In contending that the right to present a defense was violated in this case, defendant posits that the People's "unfettered access" to recordings of jail phone calls has the potential to prejudice a pro se defendant and impair his ability to prepare and present a defense, undermining the fairness of the process ( People v Johnson , 27 NY3d 199 , 211 [2016, Pigott, J., concurring]). The opportunity for a lawyer to communicate confidentially with potential witnesses is essential to preparation of a defense, and the same is true for an incarcerated defendant exercising the right to self-representation. Pro se defendants who use jail telephones to prepare their witnesses and discuss trial strategies may not fully appreciate that their conversations may be divulged to the prosecution, which risks placing them at an unfair disadvantage. Even where that possibility is understood, the limited alternative options place many incarcerated pro se defendants in a difficult position: prepare over a recorded phone line or do not prepare at all ( see id. at 211 [Pigott, J., concurring]). [1] Under the particular facts of this case, however, we conclude that defendant's right to present a defense was not impaired by the monitoring of his jail phone calls. Defendant was out on bail for nearly the entire two years between indictment and his mid-trial remand, including more than six months while representing himself, giving him ample time to prepare his witnesses. Even after remand, there is no dispute that defendant had means other than the recorded phone lines to prepare his witnesses. Indeed, the record establishes that defendant's daughter visited him in [*4] jail at his request before he called her to testify so that they could continue their trial preparations in person. The court was proactive in protecting defendant's rights, [FN2] permitting him time in the courtroom to speak to each of his witnesses in private before their testimony. In addition, when defendant asked to adjourn for the weekend {**42 NY3d at 618} to prepare his witnesses, the court stated that it would take the matter up in the morning, at which time it was agreed that defendant would testify for most of the remainder of the week. The court also noted that defendant had been assigned a legal advisor and an investigator, both of whom had the expertise and wherewithal to assist in the preparation of the defense. Although the People's monitoring of an incarcerated pro se defendant's jail phone calls may have a chilling effect on the defendant's trial preparation that threatens the right to present a defense—particularly if the People are able to make use of the information in the calls in the pending trial—the facts here are otherwise. Defendant became aware that the People were listening to his phone conversations only after he had presented the direct testimony of his daughter and an expert. Aside from himself, the only remaining defense witnesses provided character testimony and little else that could be considered relevant to the case. Thus, any chilling effect here was negligible. Under the circumstances of this case, we conclude that there was no violation of defendant's right to present a defense. III. Defendant's remaining contentions are meritless, waived, or unpreserved. Contrary to defendant's contention, the court properly denied his motion to sever the counts in the first indictment charging child pornography offenses from the counts charging sexual assault offenses. Because the offenses were properly joined pursuant to CPL 200.20 (2) (b), "the court lacked statutory authority to sever" them ( People v Bongarzone , 69 NY2d 892, 895 [1987]; see CPL 200.20 [3]). [2] We reject defendant's further contention that the court should have denied his request to proceed pro se as equivocal. A request to go pro se is equivocal when it "does not reflect an affirmative desire for self-representation" and instead shows that "self-representation was reserved as a final, conditional resort" ( Matter of Kathleen K. [Steven K.] , 17 NY3d 380 , 387 [2011]). To be sure, "conditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal" ( People v LaValle , 3 NY3d 88 , 107 [2004]), but it can become equivocal where a "defendant raised the argument for self-representation as a way of obtaining the dismissal of his . . . assigned counsel" ( People v Gillian , 8 NY3d 85 , 88 [2006]). Here, although defendant {**42 NY3d at 619} initially made his request to proceed pro se as an alternative to his request for substitute counsel, defendant later told the court that he had spoken to his family and decided that self-representation was "the best way to go." Before conducting the requisite searching inquiry, the court invited defendant to make another argument for substitute counsel, but defendant declined to do so, explaining that he was "satisfied to go pro se." Moreover, even after granting defendant's request to proceed pro se, the court left the door open for defendant to make an argument for the appointment of a new attorney, and thereafter defendant "never said a word about wanting" one ( LaValle , 3 NY3d at 107). Under these circumstances, where defendant explicitly declined the opportunity to argue for a new attorney, defendant's request was unequivocal. Defendant next contends that the court failed to conduct a "searching inquiry" as required to apprise him of the dangers and pitfalls of self-representation inasmuch as the court failed to ensure that he was aware of the nature of the charges and range of possible sentences that may result from conviction. We reject that contention as well ( see People v Blue , — NY3d — [2024]). The record and defendant's own statements indicate that he worked as a court officer for 21 years, had been involved in prior sexual abuse cases, and was aware that he risked [*5] serving the rest of his natural life in prison if convicted. Indeed, defendant mentioned twice during the searching inquiry that his "life" was at stake. Defendant waived any challenge to the use of a recorded jail telephone call during cross-examination of his daughter because he agreed to allow the recording to be played and stipulated to its contents ( see People v Santos-Sosa , 233 AD2d 833, 833 [4th Dept 1996], lv denied 89 NY2d 988 [1997]). Defendant's remaining contentions, including his challenge to the People's introduction of an inflammatory bestiality video, are unpreserved. Accordingly, the order of the Appellate Division should be affirmed. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Halligan concur. Order affirmed. Footnotes Footnote 1: According to the trial testimony of the detective and computer crimes specialist who conducted the forensic examination, TrueCrypt is software that allows users to encrypt files and create containers, like folders, where encrypted files can be stored and accessed only by a person who knows the password. Footnote 2: Though unrelated to the monitoring of the calls, we note that another of the court's rulings demonstrates that the court was mindful of defendant's right to present a defense. When defendant sought to introduce a previously undisclosed, years-old, edited recording of a complainant's ostensible recantation, the court permitted the recording to be played for the jury, a ruling consistent with the goal of protecting defendant's right to present a defense ( see People v Cerda , 40 NY3d 369 , 378 [2023] [concluding that exclusion of exculpatory forensic evidence violated right to present defense]; People v Spencer , 20 NY3d 954 , 956 [2012] [concluding that court should have permitted defendant to present evidence in his defense of officer's motive to frame him for the crime]).

[Assistant]
Under the circumstances of this particular case, the People's monitoring of
phone calls that pro se defendant made from jail to his witnesses did not
violate the defendant's constitutional right to present a defense.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Constitutional Claims and the subtopic of Miranda. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v James 2024 NY Slip Op 00915 [224 AD3d 849] February 21, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 3, 2024 [*1] The People of the State of New York, Respondent, v Fermin James, Appellant. Samuel Coe, White Plains, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Shea Scanlon Lomma and Raffaelina Gianfrancesco of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Westchester County (Robert A. Neary, J.), rendered November 19, 2021, convicting him of course of sexual conduct against a child in the second degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. Ordered that the judgment is affirmed. The defendant was convicted of course of sexual conduct against a child in the second degree and endangering the welfare of a child, after a jury trial, at which the complainant testified. The County Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. " Miranda warnings are required only when a suspect is subjected to custodial interrogation, which, by definition, entails both custody and interrogation" ( People v Lowe , 189 AD3d 1461 , 1462 [2020] [internal quotation marks omitted]; see People v Paulman , 5 NY3d 122 , 129 [2005]). "Whether an individual is in custody is generally a question of fact which does not depend on the subjective beliefs of the defendant or the subjective intent of the police officers" ( People v Ramjattan , 219 AD3d 1348 , 1349 [2023]; see People v Lowe , 189 AD3d at 1462). Rather, "[t]he standard for assessing a suspect's custodial status is whether a reasonable person innocent of any wrongdoing would have believed that he or she was not free to leave" ( People v Paulman , 5 NY3d at 129; see People v Ramjattan , 219 AD3d at 1349). Here, the evidence adduced at the suppression hearing established that the defendant voluntarily went to the police station, and although he had the option to drive himself, the defendant requested to ride in the police detective's vehicle. During the interview, the defendant was not placed in handcuffs, and the detective's questions were neither accusatory nor coercive. Therefore, the evidence at the suppression hearing supported the County Court's conclusion that the statements made by the defendant were not the product of a custodial interrogation ( see People v Paulman , 5 NY3d at 129; People v Ramjattan , 219 AD3d at 1349). Contrary to the defendant's contention, the County Court providently exercised its discretion in allowing the jury to utilize a transcript while the recording of the defendant's [*2] videotaped statement was played and properly instructed the jury that the transcript was merely an aid and not evidence, and that to the extent there was any discrepancy between the recording and the transcript, the recording controlled ( see People v Lubow , 29 NY2d 58, 68 [1971]; People v Hendricks , 161 AD3d 892 , 892 [2018]; People v Wilson , 207 AD2d 463, 464 [1994]). The County Court also providently exercised its discretion in denying, as untimely, the defendant's application for a missing witness charge based on the People's failure to call the complainant's father as a witness ( see People v Carr , 14 NY3d 808 , 809 [2010]). Moreover, any testimony by the complainant's father regarding the exact hours or days he worked was not material to any element of the crimes charged, was cumulative of the testimony of the complainant and the complaint's mother, and defense counsel was permitted to comment during summation on the People's failure to call the father as a witness ( see People v Williams , 5 NY3d 732 , 734 [2005]; People v Morris , 207 AD3d 477 , 478 [2022]; People v Johnson , 139 AD3d 967 , 974 [2016], affd 31 NY3d 942 [2018]). Viewing the record as a whole, the defendant was not deprived of the effective assistance of counsel, as defense counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 713 [1998]; People v Baldi , 54 NY2d 137 [1981]). The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). The defendant's remaining contention is without merit. Connolly, J.P., Miller, Dowling and Landicino, JJ., concur.

[Assistant]
Miranda warnings were not required when defendant went voluntarily to
the police station in a police vehicle to be interviewed.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Crimes - Specific Offenses or Elements; also Accomplice Liability & Constructive Possession and the subtopic of Depraved indifference. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Baldner 2024 NY Slip Op 04495 [230 AD3d 1434] September 19, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 13, 2024 [*1] The People of the State of New York, Appellant, v Christopher Baldner, Respondent. Letitia James, Attorney General, New York City (Matthew B. Keller of counsel), for appellant. Larkin Ingrassia LLP, Newburgh (John Ingrassia of counsel), for respondent. Aarons, J. Appeal from an order of the County Court of Ulster County (Bryan E. Rounds, J.), entered February 2, 2023, which, among other things, partially granted defendant's motion to dismiss the indictment. On two separate occasions—once in September 2019 and once in December 2020—defendant, an on-duty state trooper, engaged in high-speed chases with vehicles traveling on Interstate 87 (hereinafter the Thruway) in Ulster County. Both chases ended when defendant collided with the vehicles from behind, forcing them off the road. One of those vehicles flipped over and landed upside down, and a passenger inside the vehicle died. She was 11 years old. The Attorney General commenced an investigation, culminating in an indictment charging defendant with one count of murder in the second degree (depraved indifference murder), one count of manslaughter in the second degree and six counts of reckless endangerment in the first degree. Defendant filed an omnibus motion contending, as relevant here, that the evidence before the grand jury was not legally sufficient to establish that defendant acted with depraved indifference to human life as required by the crimes of depraved indifference murder and first-degree reckless endangerment. County Court agreed and dismissed the count of depraved indifference murder and reduced the counts of first-degree reckless endangerment to reckless endangerment in the second degree. The People appeal. Depraved indifference is a culpable mental state that is "best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply does not care whether grievous harm results or not" ( People v Williams , 206 AD3d 1282 , 1284 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; see People v Huntington , 57 AD3d 1238 , 1239 [3d Dept 2008]). "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person" (Penal Law § 120.25). A person is guilty of depraved indifference murder if, by that same conduct, the person "causes the death of another person" (Penal Law § 125.25 [2]). Thus, depraved indifference is an essential element of both crimes that "has meaning independent of recklessness and the gravity of the risk created" ( People v Maldonado , 24 NY3d 48 , 53 [2014] [internal quotation marks and citation omitted]; see Penal Law §§ 120.25, 125.25 [2]; People v Lewie , 17 NY3d 348 , 359 [2011]; People v Feingold , 7 NY3d 288 , 294-295 [2006]; see also Penal Law § 15.05 [3]). Depraved indifference requires a "highly fact-specific" inquiry ( People v Heidgen , 22 NY3d 259 , 276 [2013]), and, in assessing the legal sufficiency of evidence before the grand jury, "[o]ur task is limited to assessing whether the facts, if proven, and the inferences that logically flow from those facts supply proof of [*2] every element of the charged crimes" ( People v Reid , 185 AD3d 1163 , 1165 [3d Dept 2020] [internal quotation marks and citations omitted]). Critically, the "reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury" ( People v Edwards , 36 NY3d 946 , 947 [2020] [internal quotation marks and citations omitted]; accord People v Hart , 221 AD3d 1192 , 1193 [3d Dept 2023]). "In the context of grand jury proceedings, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" ( People v Park , 163 AD3d 1060 , 1061 [3d Dept 2018] [internal quotation marks and citations omitted]; see CPL 70.10 [1]). The grand jury heard that, in September 2019, defendant "came out of the woods like the Dukes of Hazard" in his State Police vehicle, sirens activated, when he observed a minivan speeding at 80 miles per hour. Jonathan Muthu, the minivan's driver, testified that there were two passengers with him—a friend who had travelled with him from New York City to the Albany area earlier that morning and an acquaintance Muthu agreed to transport from Albany back to New York City. Muthu admitted that he fled the ensuing traffic stop because he had marihuana in the minivan, and accelerated to 70 to 80 miles per hour while "trying to go around cars." After Muthu failed to pull over again, defendant hit the rear of the minivan with his State Police vehicle while the minivan was traveling at "highway speed." The collision caused the minivan to spin 180 degrees, leave the roadway and hit the guardrail in the median. Defendant then crashed his State Police vehicle head-on into the front of the stationary minivan with Muthu and his two passengers still inside. The minivan was totaled, Muthu said, and the State Police vehicle appeared to sustain heavy damage too. Defendant then pointed his gun at Muthu and the two passengers and ordered them outside to lie on the ground, repeatedly asking whether they had weapons or drugs but never whether anyone was hurt. Muthu also testified to defendant's statements to him after he was taken into custody. As recounted by Muthu, defendant said he was "lucky" that the "pit maneuver" succeeded in stopping the minivan, because otherwise defendant would have had tire spikes thrown onto the Thruway. Further, defendant told Muthu there is "only one way in and one way out" of the Thruway and wondered, "Where did you think you were going to go?" By contrast, defendant's contemporaneous memorandum concerning the 2019 incident indicates the minivan had been traveling at 90 miles per hour before the attempted traffic stop, and then was "weaving in and out of traffic[,] slowing and speeding up to speeds over 100 mph." According to that memorandum and testimony from defendant's shift supervisor, defendant reported that the minivan initiated contact with the passenger side of defendant's State Police vehicle [*3] , causing the minivan to lose control and crash into the median guardrail. Defendant further reported that he positioned his State Police vehicle in front of the minivan after it hit the guardrail, and the minivan drove into the front end of defendant's vehicle attempting to flee again. The evidence of the December 2020 incident follows a similar pattern. The grand jury heard from witnesses that, around 11:40 p.m., defendant was "see[ing] if he could get one last ticket" before meeting his partner when he stopped an SUV for speeding. The SUV pulled over, and, as told by Tristin Goods, who was driving the SUV, along with Goods' wife, who was seated in the front passenger seat, defendant began the traffic stop by angrily and profanely accusing Goods of traveling over 100 miles per hour. An argument between defendant and Goods ensued in front of Goods' wife and two children, who tried to calm him. Witnesses testified that, after defendant stepped away upon Goods' request to summon a supervisor, defendant returned and, without warning or provocation, pepper-sprayed the passenger cabin of the SUV, and Goods' wife and two children began screaming in pain. Goods, who had shielded his eyes from the spray, fled the traffic stop; in the commotion, defendant's pepper spray canister ended up inside the passenger cabin of the SUV. Defendant radioed that the SUV was "taking off" with his pepper spray. According to the grand jury record, defendant pursued and caught up to the SUV and, without activating his siren, intentionally rammed the back of the SUV at 130 miles per hour. Defendant radioed dispatch, however, that the SUV had "just f . . . ing rammed me." The collision caused the SUV to fishtail, and pieces of it fell onto the road. The SUV continued on, so defendant intentionally rammed the back of the SUV again, this time at 100 miles per hour. Defendant radioed dispatch that the SUV "rammed me again." The second collision caused Goods to lose control of the SUV, and the SUV flipped over, coming to a stop upside down in the grass next to the Thruway with Goods, his wife and two children inside. Defendant, seeing this, radioed that a car was overturned. [FN1] Testimony established that defendant drew his gun, instructed the occupants of the SUV to put their hands out of the windows and asked repeatedly whether they possessed weapons or drugs. Defendant did not inquire if anyone inside was injured in the crash and, when Goods' 11-year-old child could not be located, defendant did not assist him in looking for her. According to Goods, who had sustained arm, hand and head injuries, defendant "did not care." The child was later found pinned inside the wreck of the SUV, having already died from severe injuries sustained in the accident. Meanwhile, as emergency responders engaged in recovery efforts, testimony and video evidence revealed that defendant searched for and found his pepper spray can. According to another trooper at the scene who asked defendant how he was [*4] doing, defendant said he felt "fine" except for the pepper spray that had blown back on him when it was discharged. Defendant reported to a State Police sergeant that both collisions were initiated by the SUV, including the second one, which caused the SUV to lose control and crash. Although "the mens rea of depraved indifference will rarely be established by risky behavior alone" ( People v Maldonado , 24 NY3d at 53), intentionally colliding with occupied vehicles traveling 70 to 100 miles per hour comes close ( see People v Williams , 162 AD3d 694 , 696-697 [2d Dept 2018], lv denied 32 NY3d 942 [2018], cert denied 586 US &mdash, 139 S Ct 847 [2019]; People v Garrow , 75 AD3d 849 , 851 [3d Dept 2010]; see also People v Heidgen , 22 NY3d at 277; cf. People v Herrera , 202 AD3d 517 , 518 [1st Dept 2022], lv denied 38 NY3d 1134 [2022]). Viewed in the light most favorable to the People ( see People v Edwards , 36 NY3d at 947), the grand jury could rely on testimony and evidence indicating that, after both incidents, "defendant exhibited no signs of remorse for the results of his recklessness" as proof that he hit the minivan in 2019 and the SUV in 2020 with an utter disregard for the value of the human lives within them ( People v Williams , 162 AD3d at 697; see People v Williams , 206 AD3d at 1284, 1288; People v Nelligan , 135 AD3d 1075 , 1078 [3d Dept 2016], lv denied 27 NY3d 1072 [2016]; see also People v Barboni , 21 NY3d 393 , 402 [2013]). As to the 2019 incident, the grand jury could infer that defendant—aware that the minivan could not have evaded him given the Thruway's one-way-in, one-way-out design—"simply [did not] care whether grievous harm result[ed]" from colliding with the occupied minivan from behind given testimony that defendant's very next act was to crash into it again from the front, later expressing that Muthu was lucky the so-called pit maneuver worked ( People v Williams , 206 AD3d at 1284 [internal quotation marks and citations omitted]; see People v Suarez , 6 NY3d 202 , 214 [2005]). Similarly, as to the 2020 incident, the grand jury could infer that defendant saw the SUV falling apart all over the road after he rammed it the first time at 130 miles per hour, permitting the grand jury to find that defendant—aware that the SUV still contained a family of four, including two children, all of whom he had just pepper-sprayed—was callously indifferent to the predictably tragic consequences of ramming it a second time at 100 miles per hour ( see People v Wilson , 32 NY3d 1 , 7 [2018]; People v Barboni , 21 NY3d at 403-404). Additionally, State Police witnesses testified that, even though vehicle contact is listed in the agency's pursuit manual, it is an "extreme measure" that troopers are not trained to do. As a result, witnesses told the grand jury, the tactic should only be employed with supervisor approval—which the evidence showed defendant never obtained—or in "extraordinary" or "life-threatening" circumstances—which the grand jury could [*5] find did not exist. [FN2] Remaining mindful that "[t]rying to cover up a crime does not prove indifference to it" ( People v Lewie , 17 NY3d at 360), in our view, proof tending to show that defendant was avoiding supervisory scrutiny and fabricating a record in real time to justify the brutal act of intentionally crashing his State Police vehicle into two occupied civilian vehicles at high speed supports an inference that he did so because of wanton cruelty and a contemptuous disregard for whether the occupants of those vehicles lived or died ( cf. People v Williams , 150 AD3d 1273 , 1278 [2d Dept 2017], lv denied 29 NY3d 1135 [2017]; compare People v Lewie , 17 NY3d at 359-360). Although innocent inferences could also be drawn from the evidence presented, the People's proof was legally sufficient to support the grand jury's finding that defendant exhibited depraved indifference toward the occupants of the minivan and SUV ( see People v Edwards , 182 AD3d 929 , 931 [3d Dept 2020], affd 36 NY3d 946 [2020]; People v Williams , 162 AD3d at 697). Defendant nevertheless contends that he cannot have acted with depraved indifference because, in the context of federal civil rights lawsuits, police officers were held not liable because their injury-causing collisions with fleeing vehicles were found objectively reasonable under the circumstances ( see Scott v Harris , 550 US 372, 383-384 [2007]; Christiansen v Eral , 52 F4th 377, 380 [8th Cir 2022]; Pasco ex rel. Pasco v Knoblauch , 566 F3d 572, 581 [5th Cir 2009]; Sharp v Fisher , 532 F3d 1180, 1184 [11th Cir 2008]; Abney v Coe , 493 F3d 412, 418 [4th Cir 2007]). This point misses the mark, as "it is not the circumstances under which the [criminal conduct] occurred that determines whether defendant is guilty of depraved indifference [crimes], but rather defendant's mental state at the time the crime[s] occurred" ( People v Jean-Baptiste , 11 NY3d 539 , 542 [2008]; see People v Prindle , 16 NY3d 768 , 770 [2011]; People v Feingold , 7 NY3d at 294-295). In a similar vein, the dissent's conclusion that defendant cannot be charged with depraved indifference crimes because he was trying to protect the public from dangerous high-speed chases flows from a misapplication of the standard of review. To summarize the relevant grand jury evidence, Muthu testified that he was trying to avoid other vehicles during the chase and was going 70 to 80 miles per hour in the correct direction on the Thruway. Goods was pulled over close to midnight, suggesting there were few other cars on the Thruway when he sped away after defendant allegedly pepper-sprayed his wife and two children for no reason. In neither chase did defendant report that other drivers were endangered or request permission to initiate vehicle contact despite having the opportunity and mandate to do so. Indeed, the record fairly implies defendant concealed or falsely reported the details of both chases as they occurred and in their immediate aftermaths. Accordingly, the grand jury could [*6] reject the dissent's view that defendant acted out of concern for the public. Rather, the finding permitted when the evidence is viewed in the light that most favors the People—which is the finding that we must credit in this posture ( see People v Edwards , 36 NY3d at 947; People v Hart , 221 AD3d at 1193)—is that defendant decided to end both pursuits with perilous, unsanctioned high-speed collisions while possessed of a "wickedness, evil or inhumanity" directed at two defiant drivers and the friends and family who happened to be with them ( People v Suarez , 6 NY3d at 214; see People v Williams , 162 AD3d at 696-697 [a defendant who chased potential victim at high speed and fired a gun at her vehicle, causing her to lose control of the vehicle and crash, exhibited depraved indifference]). Evidence that defendant braked during the 2020 incident an instant before striking the SUV the second time does not compel dismissal of the depraved indifference murder count and reduction of the relevant reckless endangerment counts. The People's expert opined that, according to the data retrieved from the State Police vehicle, defendant was traveling alongside the SUV when he applied the brake, rapidly slowing from 114 to 100 miles per hour, which the expert characterized as an "emergency" or "hard" brake. The expert also testified that, around the same time, defendant turned his vehicle toward the SUV, which was inconsistent with an avoidance maneuver ( see People v Edwards , 182 AD3d at 930). Given this context, the grand jury reasonably understood the expert to mean that defendant braked in order to position his State Police vehicle to intentionally ram the SUV ( compare People v Williams , 206 AD3d at 1288-1289). With respect to the 2019 incident, defendant asserts that we should affirm reduction of the relevant counts because the evidence was not legally sufficient to prove he "creat[ed] a grave risk of death" to Muthu and his two passengers (Penal Law § 120.25). County Court appears to have agreed because it concluded that defendant "ignored—and created—multiple perils that presented, at a minimum, a grave risk of physical danger to" the three occupants of the minivan, which would support a charge of second-degree reckless endangerment ( see Penal Law § 120.20). Without belaboring the point, the evidence before the grand jury indicating that defendant intentionally collided with an occupied minivan traveling at "highway speed," spinning it 180 degrees and sending it off the road, across a median and into a guardrail, is legally sufficient to sustain the counts of the indictment charging defendant with first-degree reckless endangerment ( see Penal Law § 120.25; People v Garrow , 75 AD3d at 851). The People's remaining contentions are academic. Fisher, McShan and Mackey, JJ., concur. Egan Jr., J.P. (dissenting). I am mindful that an 11-year-old child, Monica Goods, tragically lost her life on the evening of December 22, 2020, when the vehicle in which [*7] she was a back seat passenger was involved in a high-speed pursuit and collision with a State Police vehicle operated by defendant. Because I believe that County Court correctly modified the indictment by dismissing and reducing portions of it, I respectfully dissent. With this preface, the grand jury heard evidence indicating that, on separate occasions in September 2019 and December 2020, defendant, a state trooper, disregarded State Police procedures in pursuing vehicles on the Thruway after their drivers fled attempted traffic stops. He then made contact with the vehicles in the rear bumper in an apparent effort to end the chases. State Police protocols did not authorize defendant to make contact with the vehicles absent a supervisor's approval—which he did not have—and the evidence reflected that such a maneuver was generally only executed at low to moderate speeds given the risk of injury to the occupants of the vehicle that was being pursued. Viewing that evidence in the light most favorable to the People, the grand jury could readily conclude that defendant acted recklessly in both incidents by executing unauthorized maneuvers to end the chases and placing the occupants of the vehicles he was pursuing at risk of death, and it could therefore hand up an indictment charging offenses requiring that state of mind. That said, all high-speed chases involve "driv[ing] in what is generally considered a reckless manner," as the drivers "violate accepted rules of the road" and, in so doing, create "the potential for grave injuries and fatalities" for both themselves and innocent bystanders ( People v Maldonado , 24 NY3d 48 , 57-58 [2014]). "[R]eckless driving does not, on its own, establish the . . . mens rea of depraved indifference" ( id. at 55). More was required and, as I agree with County Court that the People failed to present proof to the grand jury establishing it, the court properly dismissed and/or reduced the charges in the indictment requiring a showing of depraved indifference. Depraved indifference is not merely the "conscious disregard of a known risk" of death or injury that constitutes recklessness ( People v Lewie , 17 NY3d 348 , 358 [2011]); it "is something even worse" ( id. at 359). Depraved indifference is "a culpable mental state . . . [that] is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply [does not] care whether grievous harm results or not" ( People v Heidgen , 22 NY3d 259 , 274 [2013] [internal quotation marks and citations omitted]; see People v Edwards , 36 NY3d 946 , 947 [2020]; People v Maldonado , 24 NY3d at 52-53; People v Williams , 206 AD3d 1282 , 1284 [3d Dept 2022]). "In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life—that person does not care how the risk turns out" and will shed no tears if the risk is realized and others end up injured or dead ( People [*8] v Lewie , 17 NY3d at 359). It is an exceptionally rare situation where someone exhibits such a callous disregard for others, and those cases involve "wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts, . . . conduct . . . so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill" ( People v Suarez , 6 NY3d 202 , 214 [2005] [internal quotation marks and citation omitted]; see People v Williams , 206 AD3d at 1284). The proof before the grand jury reflected that defendant had valid grounds for stopping the vehicles involved in both the September 2019 and December 2020 incidents, both of which he had observed traveling well over the posted speed limit, and that the ensuing chases would not have occurred had the drivers of the other vehicles simply seen a routine traffic stop through to its conclusion. The September 2019 incident involved the driver of a Dodge Grand Caravan who initially stopped but, after defendant got out of his troop car and began to approach, fled out of concern that defendant would discover the marihuana in the vehicle. The driver accelerated over the speed limit to 70 or 80 miles per hour and defendant, who had gotten back into his troop car, caught up. After the driver had been "trying to go around cars" in an unspecified fashion, defendant made contact with the Grand Caravan, causing it to run into the guardrail and come to a stop. Defendant then drove into the front bumper of the Grand Caravan as it came to rest on the side of the road, presumably to prevent the driver from trying to flee again, and ordered everyone out of the vehicle at gunpoint and directed them to lay face down on the grass so that he could check the vehicle. Defendant later told the driver that he was "lucky" that the maneuver worked, because defendant would have had tire spikes thrown across the road to bring the chase to a conclusion if it had not. As for the December 2020 incident, defendant stopped a Dodge Journey for speeding, and the driver of that vehicle pulled over and admittedly engaged in a verbal confrontation with defendant. The driver eventually demanded to speak to defendant's supervisor, at which point defendant walked back to his troop car. When he returned, he asked if the driver even had a driver's license. The driver declined to reply, but the driver's wife said that he did. The testimony reflected that defendant then pepper sprayed the driver and the other occupants of the Journey. At that point, the driver took off and accelerated to what the evidence reflected was 110 miles per hour. Defendant gave chase and accelerated to approximately 130 miles per hour in order to catch up with the vehicle. He then made contact with the rear of the Journey twice, causing the vehicle to spin off the road, flip over and land on its roof. Defendant approached the Journey with [*9] his gun drawn, directed the occupants to remain inside and demanded to know if there were any weapons or drugs in the vehicle. He did not ask if the occupants were all right or assist them, but there was also no question that defendant was in contact with dispatch throughout the chase and that someone summoned medical assistance that arrived within a few minutes. In my view, the foregoing evidence, if accepted as true, reflects that defendant was doing his job in a reckless and undisciplined fashion during the September 2019 and December 2020 incidents. It does not permit the conclusion that defendant evinced an utter disregard for human life in either. Defendant made justified traffic stops in September 2019 and December 2020, attempting to pull over drivers who were going over the speed limit and, in so doing, placing themselves and other motorists on the road in danger. Regardless of whether defendant's use of pepper spray to subdue an admittedly argumentative driver in the December 2020 incident was justified, the use of a nonlethal chemical spray does not suggest the "utter disregard for the value of human life" required for depraved indifference ( People v Heidgen , 22 NY3d at 274 [internal quotation marks and citations omitted]). Defendant pursued both drivers at high speed, but there is no indication that such was due to anything other than the decision of the drivers themselves to travel at a high rate of speed. Moreover, while defendant's decision to make contact with the vehicles to end both chases may well have been reckless and in violation of State Police procedures, a reckless effort to protect the public by stopping a dangerous chase can in no way be compared to the decision of a driver to continue one and behave in such a manner as to place the public at risk ( see e.g. People v Heidgen , 22 NY3d at 277 [defendant engaging in "a high speed game of chicken" on road exhibited depraved indifference to human life]; People v Herrera , 202 AD3d 517 , 517-518 [1st Dept 2022], lv denied 38 NY3d 1134 [2022] [defendant recklessly driving in wrong lane of traffic while fleeing police exhibited depraved indifference]; People v Williams , 162 AD3d 694 , 696-697 [2d Dept 2018], lv denied 10 NY3d 940 [2008] [drug dealer who chased potential victim at high speed and fired a gun at her vehicle exhibited depraved indifference]). Attempting to end a dangerous high-speed chase, even if accomplished in a manner that places the occupants of the fleeing vehicle at risk, "permits only the inference that defendant, while reckless, consciously avoided risk, which 'is the antithesis of a complete disregard for the safety of others' " ( People v Williams , 206 AD3d at 1288, quoting People v Maldonado , 24 NY3d at 54). That conclusion is in no way impacted by defendant's failure to evince concern for the occupants of either vehicle after they left the road; his actions in blocking the Grand Caravan, as well as his demanding to know if there were weapons in either vehicle [*10] , reflect little beyond his need to ensure his safety as he approached vehicles whose occupants had, to reiterate, just elected to flee lawful traffic stops at high rates of speed. Thus, as County Court determined, the proof before the grand jury does not support a finding that defendant acted with the requisite depraved indifference to human life. Ordered that the order is modified, on the law, by reversing so much thereof as dismissed count 1 of the indictment charging defendant with murder in the second degree and reduced counts 3, 4, 5, 6, 7 and 8 of the indictment from reckless endangerment in the first degree to reckless endangerment in the second degree; motion denied to that extent and such counts reinstated; and, as so modified, affirmed. Footnotes Footnote 1: In granting defendant's motion, County Court stated that recordings "reveal defendant's direction to a dispatcher for an EMS response." In their respective briefs, the People represent, and defendant concedes, that this evidence was not before the grand jury. It is therefore beyond the scope of review ( see CPL 210.20 [1] [b]). Footnote 2: Testimony established that state troopers have individual discretion to end a pursuit; thus, contrary to the dissent's reasoning, the grand jury could find that something "other than the decision[s] of the drivers themselves to travel at a high rate of speed" impelled defendant to maintain these "dangerous high-speed chase[s]" (dissenting op at 1444).

[Assistant]
A 4-1
majority of the Third Department reversed County Court order that
dismissed the depraved indifference Murder 2 count of the indictment and
reduced the 6 counts of first degree reckless endangerment to second
degree reckless endangerment. These charges had their genesis in 2
separate, high speed chases on the New York State Thruway that ended
when defendant, a State g, rammed his vehicle into the back of the pursued
vehicle, forcing it off the road. An 11-year-old child died in one of these
instances. After inspecting the grand jury minutes, the County Court
concluded that the evidence was legally insufficient to establish depraved
indifference to human life.
"Depraved indifference requires a 'highly fact-specific' inquiry (People
v Heidgen, 22 NY3d 259, 276 [2013]),
" and both the majority and
dissenting opinions detail the facts. But in sum, upon conducting the
kind of review appropriate on this People's appeal from County Court's
dismissal-modification, the majority concluded that grand jury
evidence demonstrated that "defendant decided to end both pursuits
with perilous, unsanctioned high-speed collisions while possessed of a
'wickedness, evil or inhumanity' directed at two defiant drivers and the
friends and family who happened to be with them.
" The evidence that
defendant "intentionally collided with an occupied minivan traveling at
highway speed, spinning it 180 degrees and sending it off the road,
across a median and into a guardrail" was sufficient to sustain the first-
degree reckless endangerment charges.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Crimes - Specific Offenses or Elements; also Accomplice Liability & Constructive Possession and the subtopic of Assault- serious physical injury or physical injury element. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Gaffney 2024 NY Slip Op 05671 [232 AD3d 1228] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Respondent, v Luke J. Gaffney, Appellant. Cambareri & Brenneck, Syracuse (Melissa K. Swartz of counsel), for defendant-appellant. Brittany Grome Antonacci, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent. Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered June 12, 2023. The judgment convicted defendant, upon a jury verdict, of aggravated assault upon a police officer or a peace officer. 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 aggravated assault upon a police officer or a peace officer (Penal Law § 120.11). The conviction arises out of an incident in which defendant stabbed a police officer in the leg near the femoral artery. We affirm. By failing to object to the verdict prior to the jury's discharge, defendant failed to preserve his contention that the verdict is repugnant because the jury acquitted him of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and the lesser included offense of attempted assault in the second degree (§ 120.05 [2]), but found him guilty of aggravated assault upon a police officer or a peace officer (§ 120.11; see People v Franco , 225 AD3d 1284 , 1284 [4th Dept 2024], lv denied 41 NY3d 1002 [2024]; People v Pearson , 192 AD3d 1555 , 1556 [4th Dept 2021], lv denied 37 NY3d 994 [2021]). Contrary to defendant's further contention, he "failed to establish the lack of a strategic decision on the part of defense counsel [in failing to object to the verdict] inasmuch as a resubmission of the matter to the jury could have resulted in a guilty verdict" on the other counts ( People v Bartlett , 89 AD3d 1453 , 1454 [4th Dept 2011], lv denied 18 NY3d 881 [2012]; see generally CPL 310.50 [2]). Even assuming, arguendo, that defendant preserved his contention that County Court erred in refusing to provide a justification charge, we conclude that there is no reasonable view of the evidence that would support such a defense ( see People v Watts , 57 NY2d 299, 301 [1982]). "[A] defendant is justified in using 'deadly physical force' upon another only if that defendant 'reasonably believes that such other person is using or about to use deadly physical force' " ( People v Brown , 33 NY3d 316 , 320 [2019], rearg denied 33 NY3d 1136 [2019], quoting Penal Law § 35.15 [2] [a]). Stated another way, the defendant must, as relevant here, establish that they subjectively "believed deadly force was necessary to avert the imminent use of deadly force" and that "in light of all the circumstances" and objectively, "a reasonable person could have had th[at] belief[ ]" ( People v Goetz , 68 NY2d 96, 115 [1986] [internal quotation marks omitted]). Here, defendant demonstrated neither. Defendant also contends that the People failed to establish that the victim suffered a serious physical injury and thus that his conviction for aggravated assault upon a police officer or a peace officer is legally insufficient and that the verdict is against the weight of the evidence. We reject those contentions. Here, "[t]he wound inflicted by defendant . . . created a substantial [*2] risk of death due to its proximity to the victim's [femoral] artery . . . even though [it] was [not] in fact severed" ( People v Gonzalez , 198 AD3d 543 , 543 [1st Dept 2021], lv denied 37 NY3d 1146 [2021]; see People v McKenzie , 161 AD3d 703 , 703-704 [1st Dept 2018], lv denied 32 NY3d 1113 [2018]). Viewing the facts "in a light most favorable to the People," we conclude that " 'there is a valid line of reasoning and permissible inferences from which a rational jury could have found' " that the victim suffered a serious physical injury ( People v Danielson , 9 NY3d 342 , 349 [2007]). Similarly, viewing the evidence in light of the elements of the crime as charged to the jury ( see id .), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Defendant argues that the court improperly permitted the People to introduce two videos. Assuming, arguendo, that defendant preserved his objection to the video evidence and that the court erred in admitting it, we conclude that any error was harmless ( see People v Crimmins , 36 NY2d 230, 241-242 [1975]; People v Bryant , 144 AD3d 1523 , 1525 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]). Defendant's contention that he was deprived of a fair trial by prosecutorial misconduct on summation is, for the most part, unpreserved for our review inasmuch as defendant failed to object to all but one of the statements he now challenges on appeal ( see People v Watts , 218 AD3d 1171 , 1174 [4th Dept 2023], lv denied 40 NY3d 1013 [2023]; People v Graham , 171 AD3d 1566 , 1570 [4th Dept 2019], lv denied 33 NY3d 1104 [2019]). With respect to his preserved challenge, the court sustained defendant's objection and gave a curative instruction. Inasmuch as defendant did not object further or move for a mistrial, "the curative instructions must be deemed to have corrected the error to . . . defendant's satisfaction" ( People v Heide , 84 NY2d 943, 944 [1994]). Defendant argues that the court improperly discharged a juror with attention deficit/hyperactivity disorder for cause. Inasmuch as the People did not exhaust their peremptory challenges when the juror was dismissed or by the end of jury selection, the court's dismissal of the juror for cause does not constitute a basis for reversal ( see CPL 270.20 [2]; People v Stone , 239 AD2d 872, 873 [4th Dept 1997], lv denied 90 NY2d 943 [1997]). We reject defendant's contention that his sentence is unduly harsh and severe. Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment. Present—Whalen, P.J., Curran, Greenwood, Nowak and Keane, JJ.

[Assistant]
Affirmed. Defendant was convicted of aggravated assault upon a police
officer or a peace officer (Penal Law § 120.11) for stabbing the officer in
the leg. App. Div. affirmed, finding that the wound inflicted by defendant
created a substantial risk of death due to its proximity to the victim's
femoral artery even though the artery was not severed.. Viewing the facts
in a light most favorable to the People,
"there is a valid line of reasoning
and permissible inferences from which a rational jury could have found
that the victim suffered a serious physical injury.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Crimes - Specific Offenses or Elements; also Accomplice Liability & Constructive Possession and the subtopic of Assault- serious physical injury or physical injury element. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Dillon 2024 NY Slip Op 05246 [231 AD3d 1352] October 24, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Ronald W. Dillon Jr., Appellant. Rural Law Center of New York, Inc., Plattsburgh (Kristin A. Bluvas of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent. Clark, J.P. Appeals (1) from a judgment of the County Court of St. Lawrence County (John F. Richey, J.), rendered July 2, 2020, upon a verdict convicting defendant of the crime of assault in the second degree, and (2) from a judgment of said court (Craig P. Carriero, J.), rendered November 22, 2022, which resentenced defendant. In the early morning hours of August 5, 2018, defendant and two other individuals were riding motorcycles in the Town of Waddington, St. Lawrence County. As they approached three pedestrians—the victim, a male pedestrian and a female pedestrian—walking along the side of the road, the male pedestrian motioned for the motorcycles to slow down. The motorcycles pulled over, and the male pedestrian and one of the motorcyclists got into an argument that escalated into a physical altercation. As the victim stood aside watching, he was punched on the left side of his face and then headbutted, and he suffered a fracture to his jaw. Defendant was later arrested in connection with the victim's injuries, and he was charged by indictment with assault in the second degree. Defendant initially proceeded to jury trial in February 2019, but a mistrial was declared pursuant to CPL 280.10 due to the ineffective assistance of counsel. Defendant retained new counsel and proceeded to a second jury trial in May 2019, where he was found guilty as charged. County Court (Richey, J.) sentenced defendant, as a second felony offender, to a prison term of seven years, to be followed by five years of postrelease supervision. After his predicate felony conviction for criminal possession of marihuana in the second degree ( see former Penal Law § 221.25, repealed by L 2021, ch 92, § 15) was reduced to criminal possession of cannabis in the third degree, a class A misdemeanor ( see Penal Law § 222.30), defendant moved to set aside his sentence pursuant to CPL 440.20. County Court (Carriero, J.) granted the motion, set aside the sentence and scheduled the matter for resentencing. Thereafter, County Court resentenced defendant to a prison term of seven years, to be followed by three years of postrelease supervision. Defendant appeals from the judgment of conviction and the judgment after resentencing. Defendant argues that the verdict is not supported by legally sufficient evidence and that it is against the weight of the evidence. "When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt. In turn, when conducting a weight of the evidence review, we must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the [*2] testimony to determine if the verdict is supported by the weight of the evidence" ( People v Jenkins , 215 AD3d 1118 , 1119 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 997 [2023]; see People v Estrella , 41 NY3d 514 , 517 [2024]; People v Saylor , 173 AD3d 1489 , 1490 [3d Dept 2019]). As relevant here, "[a] person is guilty of assault in the second degree when[,] . . . [w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person" (Penal Law § 120.05 [1]). "Serious physical injury" is defined as a "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (Penal Law § 10.00 [10]). Defendant's contention that his conviction is not supported by legally sufficient evidence is preserved only with respect to the issue of identity, as this was the sole basis for his motion to dismiss ( see People v Shabazz , 177 AD3d 1170 , 1172 [3d Dept 2019]; People v Greenfield , 112 AD3d 1226 , 1226 [3d Dept 2013], lv denied 23 NY3d 1037 [2014]). [FN*] The victim admitted that he did not see who punched him on the left side of his face, as he had his eyes on the male pedestrian and one of the motorcyclists who were wrestling on the ground, but he did see that the other motorcyclist was standing to his right and defendant to his left. Further, after being knocked down by the punch, the victim saw defendant standing over him. A brief verbal exchange ensued and, when the victim stood back up, defendant headbutted him. Viewing this evidence in the light most favorable to the People, a valid line of reasoning exists that would allow a rational jury to find that defendant was the individual who punched and headbutted the victim ( see People v Scott , 219 AD3d 1572 , 1574-1575 [3d Dept 2023]; People v Lorenz , 211 AD3d 1109 , 1110 [3d Dept 2022], lv denied 39 NY3d 1112 [2023]; People v Smith , 174 AD3d 1039 , 1042 [3d Dept 2019], lv denied 35 NY3d 1097 [2020]). Thus, the identity element was established by legally sufficient evidence. Turning to defendant's challenge to the weight of the evidence, inasmuch as the victim admitted that he did not see who punched him, a different finding would not have been unreasonable. Further, a defense witness testified that she saw one of the other motorcyclists punch the victim, but she also admitted that she had spoken with defendant about her testimony and that he had urged her to blame one of the other motorcyclists. As to the victim's injuries, an oral surgeon who examined the victim diagnosed him with a fracture to the left side of his mandible, consistent with facial trauma, and performed a surgical procedure to wire the victim's jaw shut. The victim testified that his jaw was wired shut for several weeks and that he was unable to eat solid food for six weeks, causing him to lose approximately [*3] 25 pounds. At the trial, which was approximately 10 months after the incident, the victim continued to experience very occasional pain that he described as similar to arthritis. Although we do not minimize the trauma and pain suffered by the victim, the record is devoid of evidence about the injury's effect on the victim's daily living to support a finding that he sustained a "protracted impairment of health or . . . of the function of any bodily organ" (Penal Law § 10.00 [10]; compare People v Hilton , 166 AD3d 1316 , 1318-1319 [3d Dept 2018], lv denied 32 NY3d 1205 [2019]; People v Ford , 156 AD3d 1242 , 1244 [3d Dept 2017], lv denied 31 NY3d 1013 [2018]). Consequently, we are constrained to find that the verdict convicting defendant of assault in the second degree is against the weight of the evidence, as the record does not establish that the victim suffered a "serious physical injury," as that term is defined in Penal Law § 10.00 (10) ( see People v Stewart , 18 NY3d 831 , 832-833 [2011]; People v Smith , 193 AD3d 1260 , 1262-1263 [3d Dept 2021], lv denied 37 NY3d 968 [2021]; see also People v Phillip , 279 AD2d 802, 803 [3d Dept 2001], lv denied 96 NY2d 905 [2001]; compare People v Burns , 188 AD3d 1438 , 1442-1443 [3d Dept 2020], lv denied 36 NY3d 1055 [2021]). Nevertheless, as such evidence establishes that the victim suffered a physical injury—"impairment of physical condition or substantial pain" (Penal Law § 10.00 [9])—deferring to the jury's credibility determinations and viewing the evidence in a neutral light, we are satisfied that a conviction of the lesser included offense of assault in the third degree is supported by the weight of the evidence, as each and every element of said crime is established beyond a reasonable doubt ( see Penal Law § 120.00 [1]; People v Wilder , 200 AD3d 1303 , 1304-1306 [3d Dept 2021]; People v Smith , 193 AD3d at 1262-1263; People v Sleasman , 24 AD3d 1041 , 1042-1043 [3d Dept 2005]). Therefore, under these circumstances, we reduce defendant's conviction of assault in the second degree to assault in the third degree, vacate the sentence imposed on such conviction and remit the matter to County Court for resentencing ( see Penal Law § 120.00 [1]; People v Smith , 193 AD3d at 1263; People v Phillip , 279 AD2d at 803). In light of such holding, defendant's challenge to the sentence imposed upon resentencing as harsh and excessive has been rendered academic. Defendant's remaining contentions have been examined and are found to lack merit. Aarons, Reynolds Fitzgerald, McShan and Mackey, JJ., concur. Ordered that the judgments are reversed, on the facts, defendant's conviction of assault in the second degree is reduced to assault in the third degree, the sentence imposed thereon is vacated and matter remitted to the County Court of St. Lawrence County for resentencing. Footnotes Footnote *: Nevertheless, we review defendant's claims that the People failed to establish defendant's intent and that the victim sustained a serious physical injury as part of his challenge to the weight of the evidence, as we must "consider the evidence adduced with respect to each element of the crime for which defendant was convicted" ( People v Signor , 173 AD3d 1264 , 1264 [3d Dept 2019] [internal quotation marks and citation omitted]).

[Assistant]
Assault
2 conviction reduced on appeal to Assault in the Third Degree. Victim had
been punched in the face and head-butted, resulting in a fracture to his jaw.
He underwent a surgical procedure to wire his jaw shut for several weeks;
for six weeks he was unable to eat solid food and during that time lost
about 25 pounds. At the trial, which took place about 10 months after the
assault, the victim said that he still experienced "very occasional pain"
which was similar to arthritis. This evidence was insufficient to establish
"protracted impairment of health or . . . the function of a bodily organ, and
therefore did not meet the "serious physical injury" element of Assault in
the Second Degree under Penal Law § 120.05 (1).


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Crimes - Specific Offenses or Elements; also Accomplice Liability & Constructive Possession and the subtopic of Assault- serious physical injury or physical injury element. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Tillmon 2024 NY Slip Op 03294 [228 AD3d 1343] June 14, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 31, 2024 [*1] The People of the State of New York, Respondent, v Justin M. Tillmon, Appellant. Thomas L. Pelych, Hornell, for defendant-appellant. Brittany Grome Antonacci, District Attorney, Auburn (Susan C. Azzarelli of counsel), for respondent. Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered July 21, 2022. The judgment convicted defendant upon a jury verdict of assault in the second degree (two counts) and assault in the third degree. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, two counts of assault in the second degree (Penal Law § 120.05 [3]), defendant contends that the conviction of those counts is not supported by legally sufficient evidence inasmuch as the People failed to establish that the officers were performing a lawful duty when defendant was arrested and that he intended to prevent police officers from performing that lawful duty. Defendant failed to preserve his contention for our review ( see People v McCrea , 202 AD3d 1437 , 1437 [4th Dept 2022]; People v Townsley , 50 AD3d 1610 , 1611 [4th Dept 2008], lv denied 11 NY3d 742 [2008]; see generally People v Gray , 86 NY2d 10, 19 [1995]). In any event, the contention lacks merit. Viewing the evidence in the light most favorable to the People ( see People v Contes , 60 NY2d 620, 621 [1983]), we conclude that there is a valid line of reasoning and permissible inferences that would lead a rational juror to conclude that defendant intentionally prevented the officers from performing their lawful duty ( see People v Bell , 176 AD3d 1634 , 1634-1635 [4th Dept 2019], lv denied 34 NY3d 1075 [2019]; People v Metales , 171 AD3d 1562 , 1563 [4th Dept 2019], lv denied 33 NY3d 1107 [2019]; cf. People v William EE. , 276 AD2d 918, 919 [3d Dept 2000]). Defendant further contends that his conviction of assault in the second degree as charged in count two of the indictment is not supported by legally sufficient evidence that the officer in question sustained a physical injury. Contrary to the People's assertion, we conclude that defendant's contention is preserved for review ( see People v Lawrence , 221 AD3d 1583 , 1584-1585 [4th Dept 2023], lv denied 40 NY3d 1093 [2024]; cf. Bell , 176 AD3d at 1634). We nevertheless reject his contention. Physical injury is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]). " '[S]ubstantial pain' cannot be defined precisely, but it can be said that it is more than slight or trivial pain" ( People v Chiddick , 8 NY3d 445 , 447 [2007]). Here, the People elicited testimony that the officer hit his left knee on the floor and on a nearby object during a struggle with defendant, immediately after which he felt pain in his knee, walked with a limp, and had trouble bending that leg. The officer sought emergency medical attention for his injury, treated it with over-the-counter pain medication, and missed several days of work because of it, and his knee continued to trouble him years later. We conclude that the foregoing evidence is sufficient to establish that the officer sustained a physical injury ( see People v Talbott , 158 AD3d 1053 , 1054 [4th Dept 2018], lv denied 31 NY3d 1088 [2018]; People v Stillwagon , 101 AD3d 1629 , 1630 [4th Dept 2012], lv denied 21 NY3d 1020 [2013]). Furthermore, viewing the [*2] evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence with respect to whether the officer sustained a physical injury ( see People v Bookman , 224 AD3d 1269 , 1270 [4th Dept 2024]; People v Westbrooks , 213 AD3d 1274 , 1275 [4th Dept 2023], lv denied 39 NY3d 1144 [2023]; see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Although a different verdict would not have been unreasonable, it cannot be said that the jury "failed to give the evidence the weight it should be accorded" ( Bleakley , 69 NY2d at 495; cf. People v Cooney [appeal No. 2], 137 AD3d 1665, 1668 [4th Dept 2016], appeal dismissed 28 NY3d 957 [2016]; People v Gibson , 134 AD3d 1512 , 1514 [4th Dept 2015], lv denied 27 NY3d 1151 [2016]). Defendant's contention that he was punished for exercising his right to trial is not preserved for our review ( see People v Gilmore , 202 AD3d 1453 , 1454 [4th Dept 2022], lv denied 38 NY3d 1008 [2022]; People v Dupuis , 192 AD3d 1626 , 1627 [4th Dept 2021], lv denied 37 NY3d 964 [2021]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Curran, Montour, Nowak and DelConte, JJ.

[Assistant]
At trial
of assault of police officer, the requisite element of physical injury was
proven by testimony that established:
the officer hit his left knee on the floor and on a nearby object during a
struggle with defendant;
he felt pain in his knee, walked with a limp, and had trouble bending
that leg;
the officer sought emergency medical attention for his injury, treated it
with over-the-counter pain medication, and missed several days of
work because of it, and
his knee continued to trouble him years later.


[User]
Create a takeaway summary for the following court decision, focusing on the topic of Crimes - Specific Offenses or Elements; also Accomplice Liability & Constructive Possession and the subtopic of Assault- with intent to prevent peace/police officer from performing their duty. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Hensleigh 2024 NY Slip Op 06084 [233 AD3d 1105] December 5, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Jordan Hensleigh, Appellant. Steven M. Sharp, Albany, for appellant. Karen A. Heggen, District Attorney, Ballston Spa (Jesse L. Ashdown of counsel), for respondent. Ceresia, J. Appeal from judgment of the County Court of Saratoga County (Chad W. Brown, J.), rendered August 10, 2023, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree. Defendant was charged by indictment with two counts of assault in the second degree stemming from an altercation in court during which defendant, who had been informed that there was an active warrant authorizing his arrest, resisted being detained by court officers, one of whom sustained injuries during the incident. In an omnibus motion, defendant subsequently moved to dismiss the indictment on several grounds, including that there exists a legal impediment to conviction ( see CPL 210.20 [1] [h]). That is, defendant alleged that the court officers were not performing a lawful duty, as required to establish his commission of the charged crimes, [FN*] because they had no authority to execute an arrest warrant. The People opposed the motion, and County Court denied it. Thereafter, in full satisfaction of the indictment as well as another unrelated indictment charging defendant with family offenses, defendant pleaded guilty, as relevant here, to the reduced charge of attempted assault in the second degree and waived his right to appeal. Defendant was subsequently sentenced by County Court, as a second felony offender with a prior violent felony, to a prison term of 2 to 4 years, which was ordered to run consecutive to an unrelated prison term. Defendant appeals. As an initial matter, defendant's argument is properly before us despite his plea of guilty and waiver of the right to appeal. Contrary to the People's contention, defendant is not challenging the legal sufficiency of the grand jury evidence or the factual sufficiency of his plea allocution. Rather, defendant asserts that there is a legal impediment to prosecution, in that "there is no set of facts that could be proved, or to which a defendant could plead, that would establish guilt of [the charged crime] upon the theory alleged" ( People v Plunkett , 19 NY3d 400 , 407 [2012]). Such a challenge is not forfeited by a guilty plea ( see id .). Further, a legal impediment argument is akin to a claim of a jurisdictional defect, which is not foreclosed by an appeal waiver ( see People v Wheeler , 216 AD3d 1314 , 1316 [3d Dept 2023], lv denied 40 NY3d 1082 [2023]). Turning to the merits, the record reveals that, while defendant was present in Family Court for an unrelated matter, defendant and his attorney were advised by court officers that there was an outstanding warrant for his arrest and that, following the court proceeding, he would be held in a secure area to await the arrival of the police. When defendant's matter concluded and he started to leave the courtroom, another court officer told him, "[t]here's a warrant for your arrest. I need to detain you." At that point, defendant started to push past two court officers, and he was tackled to the ground. In the course of this struggle, a court officer [*2] suffered physical injuries. The police, who were already on the scene, immediately placed defendant under arrest pursuant to the arrest warrant. A peace officer, of which a uniformed court officer is one type ( see CPL 2.10 [21] [a]), "in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody" (Penal Law § 35.30 [1]). Here, the court officers had the requisite reasonable belief that defendant had committed an offense by virtue of their knowledge that an arrest warrant had been issued. That said, they possessed the lawful authority under Penal Law § 35.30 (1) to utilize physical force to temporarily detain defendant in order to facilitate the arrest by the police who were present for that purpose ( compare People v Borrero , 118 AD2d 345, 350 [1st Dept 1986] [holding that, under a similar statutory provision pertaining to private citizens, an individual had the authority to detain another, using physical force, until police arrived]). In so holding, we are mindful that, given the wide-ranging contexts in which they serve ( see CPL 2.10 [1]-[86]), peace officers are acknowledged to have "special duties" that are unique to "the specialized nature of [an officer's] particular employment" (CPL 2.20 [2]). In our view, the temporary detention carried out in this case was not inconsistent with the specialized nature of a uniformed court officer's particular employment. Based upon the foregoing, defendant's argument that there is a legal impediment to his conviction is without merit. Clark, J.P., Pritzker, Reynolds Fitzgerald and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: As relevant here, "[a] person is guilty of assault in the second degree when . . . [w]ith intent to prevent a peace officer . . . from performing a lawful duty, . . . he or she causes physical injury to such peace officer" (Penal Law § 120.05 [3]). "To sustain such a conviction, the People must establish that the injured [peace officer] was engaged in a lawful duty at the time of the assault by the defendant" ( People v Molineaux , 156 AD3d 1250 , 1251 [3d Dept 2017] [internal quotation marks and citations omitted], lv denied 31 NY3d 1085 [2018]).

[Assistant]
Defendant properly charged with second degree assault under Penal Law
§ 120.05 (3) arising out of scuffle in Family Court courtroom in which
court officer was injured while trying to detain the defendant with
outstanding arrest warrant. Court officers "possessed the lawful authority
under Penal Law § 35.30 (1) to utilize physical force to temporarily detain
defendant in order to facilitate the arrest by the police,
" and "the temporary
detention carried out in this case was not inconsistent with the specialized
nature of a uniformed court officer's particular employment.
"