Opinion
No. 2012–2743 W CR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Aiyetoro BESS, Appellant.
Opinion
ORDERED that the judgment convicting defendant of driving at a speed greater than is reasonable and prudent is reversed, on the law, the accusatory instrument charging that offense is dismissed, and the surcharge, if paid, is remitted; and it is further,
ORDERED that the judgments convicting defendant of obstructing governmental administration in the second degree and unlicensed operation of a motor vehicle, respectively, are affirmed.
In February 2012, in a misdemeanor information, defendant was charged with obstructing governmental administration in the second degree (Penal Law § 195.05), resisting arrest (Penal Law § 205.30) and disorderly conduct (Penal Law § 240.203 ). Defendant was also charged in separate simplified traffic informations with unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 5091 ) and driving at a speed greater than is reasonable and prudent (Vehicle and Traffic Law § 1180[a] ), respectively. Following a jury trial, defendant was convicted of obstructing governmental administration in the second degree, unlicensed operation of a motor vehicle and driving at a speed greater than is reasonable and prudent, and was acquitted of resisting arrest and disorderly conduct.
On appeal, defendant contends that the judgments of conviction should be reversed because the trial court unduly injected itself into the proceedings by excessively questioning him, which caused the court to assume a prosecutorial role; that the verdict convicting him of obstructing governmental administration in the second degree was repugnant to his acquittal of resisting arrest; that the evidence was legally insufficient to support the conviction of driving at a speed greater than is reasonable and prudent; that the verdict convicting him of driving at a speed greater than is reasonable and prudent was against the weight of the evidence; and that he was denied the effective assistance of counsel.
Defendant's contention regarding the trial judge's examination is unpreserved for appellate review (see People v. Charleston, 56 N.Y.2d 886, 887 1982; People v. Sanchez, 278 A.D.2d 166 2000 ), and we decline to review it in the interest of justice.
Vehicle and Traffic Law § 1180(a) provides that “[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” “Subdivision (a) of section 1180 is not intended to cover all possible acts of careless driving. It is specifically directed against excessive speed” (People v. Davis, 24 N.Y.2d 796, 797 1969 ). Upon a review of the evidence adduced at trial, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620 1983 ), we find that the People failed to establish, beyond a reasonable doubt, defendant's guilt of driving at a speed greater than was reasonable and prudent, inasmuch as the evidence did not demonstrate that the speed of defendant's vehicle was not reasonable and prudent under the conditions presented (Vehicle and Traffic Law § 1180[a] ). Consequently, the judgment convicting defendant of driving at a speed greater than is reasonable and prudent is reversed and the simplified traffic information charging this offense is dismissed.
Defendant's contention that the verdict convicting him of obstructing governmental administration in the second degree was repugnant to his acquittal of resisting arrest is unpreserved for appellate review since this objection was not raised before the court discharged the jury (see CPL 470.052; People v. Alfaro, 66 N.Y.2d 985, 987 1985; People v. Satloff, 56 N.Y.2d 745, 746 1982; People v. Jackson, 19 AD3d 614, 615 2005 ). In any event, defendant's contention lacks merit.
A conviction must be reversed on the ground of repugnancy only in those instances where an “acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered” (People v. Tucker, 55 N.Y.2d 1, 7 1981 ). A determination of whether the verdict is repugnant rests entirely upon a review of the trial court's charge (see People v. Green, 71 N.Y.2d 1006, 1008 1988; People v. Viruet, 215 A.D.2d 417, 417 1995 ). A review of the essential elements of obstructing governmental administration in the second degree and resisting arrest, as contained in the charge to the jury, reveals that the verdict convicting defendant of obstructing governmental administration in the second degree was not repugnant to his acquittal of resisting arrest (see People v. McLaurin, 50 AD3d 1515, 1516 2008; Matter of Johnetta T, 192 A.D.2d 416, 417 1993 ).
Furthermore, there is no merit to defendant's contention that he was denied the effective assistance of counsel because his trial attorney failed to make objections. As previously noted, since the verdicts are not repugnant, defendant's trial attorney cannot be faulted for not making a repugnancy objection prior to the discharge of the jury (see e.g. People v. Satloff, 56 N.Y.2d at 746; People v. Johnson, 94 AD3d 1563, 1564 2012 ). Also, with regard to any other objections that the trial attorney failed to make, it is well settled that an attorney's “failure to make a[n] ... argument that has little or no chance of success' does not amount to ineffective assistance” (People v. Johnson, 94 AD3d at 1564, quoting People v. Caban, 5 NY3d 143, 152 2005; see also People v. Stultz, 2 NY3d 277, 287 2004 ). In view of the foregoing, the judgments convicting defendant of obstructing governmental administration in the second degree and unlicensed operation of a motor vehicle are affirmed.
IANNACCI, J.P., TOLBERT and GARGUILO, JJ., concur.