Opinion
06-28-2017
The PEOPLE, etc., respondent, v. Tesfa TUCKER, appellant.
Laurette D. Mulry, Riverhead, NY (Louis E. Mazzola of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Louis E. Mazzola of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Ambro, J.), rendered September 11, 2015, convicting him of attempted assault in the second degree, assault in the third degree, and attempted obstructing governmental administration in the second degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the convictions of attempted assault in the second degree and attempted obstructing governmental administration in the second degree and vacating the sentences imposed thereon; as so modified, the judgment is affirmed.
As the People correctly concede, attempted assault in the second degree, as defined by Penal Law § 120.05(3), is a legal impossibility (see People v. Campbell, 72 N.Y.2d 602, 605, 535 N.Y.S.2d 580, 532 N.E.2d 86 ; People v. Barksdale, 139 A.D.3d 1080, 1080, 30 N.Y.S.3d 849 ; People v. Grant, 73 A.D.3d 1079, 1079, 899 N.Y.S.2d 906 ; People v. Wyrich, 259 A.D.2d 718, 718, 686 N.Y.S.2d 853 ; People v. Perez, 218 A.D.2d 754, 755, 630 N.Y.S.2d 777 ). As the People also correctly concede, attempted obstructing governmental administration in the second degree is not a legally cognizable offense (see People v. Schmidt, 76 Misc.2d 976, 978–979, 352 N.Y.S.2d 399 ; see also People v. Campbell, 72 N.Y.2d at 607, 535 N.Y.S.2d 580, 532 N.E.2d 86 ). Thus, the defendant's convictions of attempted assault in the second degree and attempted obstructing governmental administration in the second degree and the sentences imposed thereon must be vacated (see People v. Campbell, 72 N.Y.2d at 607, 535 N.Y.S.2d 580, 532 N.E.2d 86 ; People v. Barksdale, 139 A.D.3d at 1080, 30 N.Y.S.3d 849 ; People v. Grant, 73 A.D.3d at 1080, 899 N.Y.S.2d 906 ; People v. Wyrich, 259 A.D.2d at 718, 686 N.Y.S.2d 853 ; People v. Perez, 218 A.D.2d at 755, 630 N.Y.S.2d 777 ), and the defendant's contention that the sentence imposed on the conviction of attempted assault in the second degree was excessive need not be reached (see People v. Dunaway, 134 A.D.3d 952, 954, 22 N.Y.S.3d 476 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of assault in the third degree beyond a reasonable doubt, including that he caused "physical injury" to the complainant (see Penal Law §§ 10.00[9], 120.00[2] ; People v. Williams, 146 A.D.3d 906, 909, 48 N.Y.S.3d 405 ; People v. Carson, 126 A.D.3d 996, 997, 6 N.Y.S.3d 269 ; People v. Monserrate, 90 A.D.3d 785, 788, 934 N.Y.S.2d 485 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt of assault in the third degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that his waiver of the right to a jury trial was invalid is unpreserved for appellate review (see CPL 470. 05 [2]; People v. Johnson, 51 N.Y.2d 986, 987, 435 N.Y.S.2d 713, 416 N.E.2d 1048 ; People v. Williams, 149 A.D.3d 986, 50 N.Y.S.3d 305 ; People v. Petitbrun, 123 A.D.3d 1057, 1058, 999 N.Y.S.2d 164 ; People v. Butler, 17 A.D.3d 379, 380, 792 N.Y.S.2d 581 ) and is, in any event, without merit. The defendant discussed the waiver of his right to a jury trial with his attorney and executed a written waiver in open court after allocution by the court, the court approved the waiver, and the circumstances surrounding the waiver support the court's determination that it was knowingly, intelligently, and voluntarily made (see People v. Williams, 149 A.D.3d 986, 50 N.Y.S.3d 305 ; People v. Pazmini, 132 A.D.3d 1015, 1015, 18 N.Y.S.3d 359 ; People v. Gucciardo, 128 A.D.3d 983, 984, 11 N.Y.S.3d 78 ; People v. Campos, 93 A.D.3d 581, 582–583, 940 N.Y.S.2d 634 ; People v. Silva, 91 A.D.3d 675, 675, 935 N.Y.S.2d 891 ; People v. Butler, 17 A.D.3d at 380, 792 N.Y.S.2d 581 ; People v. Cassano, 279 A.D.2d 636, 636, 719 N.Y.S.2d 874 ).
Contrary to the defendant's contention, the County Court providently exercised its discretion in declining to, sua sponte, order an additional examination of the defendant pursuant to CPL article 730 prior to sentencing (see People v. Sulaiman, 134 A.D.3d 860, 860, 20 N.Y.S.3d 650 ; People v. Bennett, 63 A.D.3d 1086, 1087, 880 N.Y.S.2d 565 ; People v. Pallonetti, 62 A.D.3d 1027, 1027, 878 N.Y.S.2d 910 ; People v. Rios, 26 A.D.3d 521, 521, 809 N.Y.S.2d 463 ; People v. Soto, 23 A.D.3d 586, 586, 806 N.Y.S.2d 612 ). Nothing in the record indicates that the defendant "lack[ed] the capacity to understand the proceedings against him or to assist in his own defense" ( CPL 730.10[1] ; see People v. Phillips, 16 N.Y.3d 510, 516, 924 N.Y.S.2d 4, 948 N.E.2d 428 ; People v. Mendez, 1 N.Y.3d 15, 20, 769 N.Y.S.2d 162, 801 N.E.2d 382 ; People v. Tortorici, 92 N.Y.2d 757, 765, 686 N.Y.S.2d 346, 709 N.E.2d 87 ; People v. Morgan, 87 N.Y.2d 878, 881, 638 N.Y.S.2d 942, 662 N.E.2d 260 ; People v. Pallonetti, 62 A.D.3d at 1027, 878 N.Y.S.2d 910 ; People v. Perez, 46 A.D.3d 708, 709, 847 N.Y.S.2d 226 ).