Opinion
2014-04-1
The PEOPLE of the State of New York, Respondent, v. Shauna KING, Defendant–Appellant.
Glenn A. Garber, P.C., New York (Glenn A. Garber of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
Glenn A. Garber, P.C., New York (Glenn A. Garber of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered September 8, 2010, as amended February 9, 2011, convicting defendant, after a jury trial, of assault in the second degree (two counts), reckless endangerment in the first degree, criminal possession of a forged instrument in the second degree, identity theft in the second degree, and assault in the third degree, and sentencing her, as a second felony offender, to an aggregate term of 9 to 12 years, unanimously affirmed.
Defendant challenges the sufficiency and weight of the evidence supporting her reckless endangerment and possession of a forged instrument convictions. Defendant'slegal sufficiency claims are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. We also reject defendant's argument that these verdicts were against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Initially, we find no basis for disturbing any of the jury's credibility determinations.
With respect to reckless endangerment, defendant's depraved indifference to human life was established by evidence that while fleeing from the police by car after committing other crimes, defendant violated various traffic laws, struck multiple cars and two people, including a police officer in her path, and nearly struck additional pedestrians and cars before being forced by traffic to stop ( see e.g. People v. Tart, 305 A.D.2d 137, 757 N.Y.S.2d 842 [1st Dept.2003],lv. denied100 N.Y.2d 624, 767 N.Y.S.2d 408, 799 N.E.2d 631 [2003] ). Unlike the defendant in People v. Prindle, 16 N.Y.3d 768, 919 N.Y.S.2d 491, 944 N.E.2d 1130 (2011), which also involved a high speed chase, this defendant made no effort to avoid hitting persons and vehicles; instead, she continued her grossly reckless driving even after she knocked a pedestrian into the air and was well aware that she was endangering people's lives ( see People v. Heidgen, 22 N.Y.3d 259, 276, 980 N.Y.S.2d 320, 3 N.E.3d 657 [2013];People v. Gomez, 65 N.Y.2d 9, 12, 489 N.Y.S.2d 156, 478 N.E.2d 759 [1985] ).
With respect to possession of a forged instrument, the evidence established defendant's accessorial liability for possession of a forged driver's license recovered from the codefendant ( seePenal Law § 20.00). The evidence supports the conclusion that the forged license, used in an effort to steal merchandise, was an instrumentality of a joint criminal enterprise involving both defendants and was thus jointly possessed by both of them ( see e.g. Matter of Kadeem W., 5 N.Y.3d 864, 808 N.Y.S.2d 130, 842 N.E.2d 15 [2005];People v. Ramos, 59 A.D.3d 269, 873 N.Y.S.2d 579 [1st Dept.2009],lv. denied12 N.Y.3d 858, 881 N.Y.S.2d 670, 909 N.E.2d 593 [2009].
The court properly exercised its discretion in imposing reasonable limits on defendant's cross-examination of the People's witnesses ( see People v. Corby, 6 N.Y.3d 231, 234–235, 811 N.Y.S.2d 613, 844 N.E.2d 1135 [2005] ). Defendant received sufficient latitude in which to impeach the credibility of police and medical witnesses. Since defendant never asserted a constitutional right to pursue any precluded lines of inquiry, her constitutional claim is unpreserved ( see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ), and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal ( see Delaware v. Van Arsdall, 475 U.S. 673, 678–679, 106 S.Ct. 1431, 89 L.Ed.2d 674 [1986] ).
Although, in explaining the elements of second-degree identity theft, the court incorrectly described attempted fourth-degree grand larceny as a felony, when in fact it is a misdemeanor, this could not have prejudiced defendant. Under the circumstances of the case, an attempt to commit fourth-degree grand larceny would satisfy the requirements of Penal Law § 190.79(3), and there is no reasonable possibility that the jury convicted defendant of identity theft on an improper theory ( see People v. Whitecloud, 110 A.D.3d 626, 973 N.Y.S.2d 216 [1st Dept.2013] ).
Defendant did not preserve her remaining arguments concerning the court's charge, including those relating to its instruction on depraved indifference, or any of her challenges to the prosecutor's summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.