Opinion
2017-12410, 2019-01925 Ind. No. 653/14
05-17-2023
The PEOPLE, etc., respondent, v. Muhammed ALI, appellant.
Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Rebecca Nealon of counsel), for respondent.
Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Rebecca Nealon of counsel), for respondent.
MARK C. DILLON, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered September 28, 2017, convicting him of assault on a police officer, reckless endangerment in the second degree, and reckless driving, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court rendered January 31, 2019, convicting him of attempted assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgments are affirmed.
By judgment rendered September 28, 2017, the defendant was convicted, upon a jury verdict, inter alia, of assault on a police officer when, in the course of evading arrest on another matter by Nassau County police officers on January 5, 2014, he pinned a Nassau County police officer between the front of his vehicle and the rear of a police vehicle. By judgment rendered January 31, 2019, the defendant was convicted, upon his plea of guilty, of attempted assault in the first degree for his conduct in the same January 5, 2014 incident relative to another Nassau County police officer.
With respect to the judgment rendered September 28, 2017, the defendant's contention that the evidence was legally insufficient to support his conviction of assault on a police officer is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gutierrez, 209 A.D.3d 669, 670, 176 N.Y.S.3d 100 ). In any event, 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 that the officer sustained a serious physical injury within the meaning of Penal Law § 10.00(10) (see People v. Brownfield, 187 A.D.3d 1036, 1037, 131 N.Y.S.3d 214 ; People v. Rudenko, 151 A.D.3d 1084, 54 N.Y.S.3d 597 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the count of assault on a police officer was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
With respect to the judgment rendered January 31, 2019, the defendant's purported waiver of his right to appeal was invalid. The defendant's written waiver incorrectly stated that the appeal waiver included a forfeiture of the attendant right to counsel and poor person relief, mischaracterized the appellate rights waived as encompassing an absolute bar to the pursuit of postconviction collateral relief in both state and federal courts separate from direct appeal (see People v. Thomas, 34 N.Y.3d 545, 565–566, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Santillan, 200 A.D.3d 1074, 1075, 155 N.Y.S.3d 821 ; People v. Morrison, 199 A.D.3d 707, 708, 153 N.Y.S.3d 902 ; People v. Habersham, 186 A.D.3d 854, 854, 127 N.Y.S.3d 775 ), and incorrectly informed the defendant that the appellate waiver encompassed any issue that might arise with regard to a predicate felony adjudication or an enhanced sentence (see People v. Reynolds, 186 A.D.3d 1535, 1535, 129 N.Y.S.3d 495 ). These incorrect statements were not corrected by the Supreme Court during the oral appeal waiver colloquy on the record (see People v. Santillan, 200 A.D.3d at 1075, 155 N.Y.S.3d 821 ). Moreover, during the oral appeal waiver colloquy, the court conflated the waiver of the right to appeal with the defendant's waiver of his right to a trial by entering a plea of guilty (see id. ; People v. Chy, 184 A.D.3d 664, 665, 125 N.Y.S.3d 130 ). However, the sentence imposed pursuant to that judgment was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675, 455 N.Y.S.2d 675 ).
The defendant's contention raised in Point II of his brief is without merit.
DILLON, J.P., RIVERA, MALTESE and VOUTSINAS, JJ., concur.