Opinion
No. 2020-726 N CR
12-01-2022
The People of the State of New York, Respondent, v. Rondese Hilton-Jones, Appellant.
Nassau County Legal Aid Society (Tammy Feman and Mia Guthart of counsel), for appellant. Nassau County District Attorney (Sarah S. Rabinowitz, Libbi L. Vilher and Michael Balch of counsel), for respondent.
Unpublished Opinion
Nassau County Legal Aid Society (Tammy Feman and Mia Guthart of counsel), for appellant.
Nassau County District Attorney (Sarah S. Rabinowitz, Libbi L. Vilher and Michael Balch of counsel), for respondent.
PRESENT:: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
Appeal from judgments of the District Court of Nassau County, First District (Joy M. Watson, J.), rendered January 29, 2020. The judgments convicted defendant, upon jury verdicts, of resisting arrest, failing to signal and using a mobile telephone while operating a motor vehicle, respectively, and imposed sentences. The appeal brings up for review so much of an order of the District Court rendered November 6, 2019 as granted a Molineux motion and granted, in part, a Sandoval motion.
ORDERED that the judgments of conviction are affirmed.
In the evening of May 29, 2018, defendant's vehicle was stopped by a police officer and, following a foot chase, defendant was arrested on a felony charge of tampering with physical evidence (Penal Law § 215.40 [1]), misdemeanor charges of resisting arrest (Penal Law § 205.30) and aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2] [a] [ii]), and traffic infractions of failing to signal when turning (Vehicle and Traffic Law § 1163 [a]) and using a mobile telephone while operating a motor vehicle (Vehicle and Traffic Law § 1225-c [2] [a]). Each charge was set forth in a distinct accusatory instrument: the felony in a felony complaint, the two misdemeanors in informations, and the two traffic violations in simplified traffic informations. Prior to trial, the felony charge was reduced to attempted tampering with physical evidence (Penal Law §§ 110.00, 215.40 [1]) and the charge of aggravated unlicensed operation of a motor vehicle in the second degree was dismissed.
Following a jury trial, defendant was acquitted of the attempted tampering charge and convicted of the remaining three. On appeal, defendant contends, first, that the accusatory instruments are facially insufficient to sustain his prosecution. Although the People are correct that this point is unpreserved, as defendant lodges this complaint for the first time on appeal, it is well settled that "a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Hardy, 35 N.Y.3d 466, 475 [2020] [internal quotation marks omitted]). Thus, there is no preservation bar (see People v Burca, 58 Misc.3d 147 [A], 2018 NY Slip Op 50040[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ["Defendant's contention regarding the facial sufficiency of the accusatory instrument... is jurisdictional and, therefore, may be raised on appeal even though defendant did not raise this contention in the Criminal Court"], citing, inter alia, People v Dreyden, 15 N.Y.3d 100, 103 [2010]).
"In order to be facially sufficient under Criminal Procedure Law section 100.40 (1) (c), an accusatory instrument charging resisting arrest must allege facts that would establish, if true, every element of resisting arrest. However, the accusatory instrument does not have to allege facts that would establish, if true, every element of the offense giving rise to the arrest. Rather, the accusatory instrument need only allege that the arrest was authorized, by setting forth facts establishing that the arresting officer had probable cause to believe that the defendant committed an offense in his presence" (People v Canjura, 46 Misc.3d 66, 69 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], citing CPL 140.10[1][a]; People v Alejandro, 70 N.Y.2d 133, 135 [1987]; People v Laltoo, 22 A.D.3d 230, 230 [2005] ["defendant could properly be convicted of resisting arrest even without being convicted of any underlying crime"]; People v Clergeot, 20 Misc.3d 87, 89 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]).
Here, that accusatory instrument alleged that "the source of [the] information and basis for belief being the personal observations of the deponent." The officer's observations included defendant "placing a clear twisted bag containing a white rock like substance believed to be crack/cocaine into his mouth," which constituted the reasonable cause required for his arrest (see People v Maldonado, 86 N.Y.2d 631, 635 [1995] ["Reasonable cause means probable cause"]). In particular, the description given of the color and consistency of the substance, as well as of the bag in which it was contained, renders the officer's determination that it was crack cocaine reasonable and nonconclusory (see People v Smalls, 26 N.Y.3d 1064, 1067 [2015] ["In (People v Kalin, 12 N.Y.3d 225 [2009]), we concluded that, because the officer's account of his experience, the packaging of the drugs, and the drug paraphernalia recovered from the car 'supplied the basis' for his belief that the substances in question were illegal drugs, the information was facially sufficient notwithstanding the absence of a lab report or a description of the appearance of the drugs themselves"]). Consequently, the information charging defendant with resisting arrest is facially sufficient.
Next, with respect to the two Vehicle and Traffic Law offenses charged in separate simplified traffic informations, we note that a simplified traffic information is sufficient on its face when it substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1]; 100.40 [2]; People v Anand, 65 Misc.3d 151 [A], 2019 NY Slip Op 51875[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Ferro, 22 Misc.3d 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Additionally, pursuant to CPL 100.25 (2), if a supporting deposition of a complainant police officer is provided, it must contain allegations of fact, based either upon personal knowledge or upon information and belief, providing reasonable cause to believe that the defendant committed the offense or offenses charged (see People v Hohmeyer, 70 N.Y.2d 41, 42-44 [1987]; People v Key, 45 N.Y.2d 111, 116-117 [1978]; People v Delprete, 62 Misc.3d 128 [A], 2018 NY Slip Op 51872[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). Here, although defendant had received a supporting deposition with each simplified traffic information, any complaint regarding the facial sufficiency of the respective supporting deposition was waived by his failure to move before trial to dismiss the simplified traffic information based upon that ground (see Key, 45 N.Y.2d at 116; People v Hakim, 60 Misc.3d 137 [A], 2018 NY Slip Op 51112[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Kelleher, 39 Misc.3d 149[A], 2013 NY Slip Op 50948[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; cf. Delprete, 2018 NY Slip Op 51872[U]). Defendant's facial insufficiency arguments therefore are only reviewable with respect to each simplified traffic information itself (see Key, 45 N.Y.2d 111). As each simplified traffic information designated the offense charged, substantially conformed to the form prescribed by the Commissioner of Motor Vehicles, and provided the court with adequate information to establish that it had jurisdiction to hear the case (see CPL 100.25, 100.40 [2]; Key, 45 N.Y.2d at 115; People v Long, 44 Misc.3d 126 [A], 2014 NY Slip Op 50949]U[ [App Term, 2d Dept, 9th & 10th Jud Dists 2014]), they were sufficient on their faces and, thus, not jurisdictionally defective (see People v Patrizio, 62 Misc.3d 130 [A], 2018 NY Slip Op 51901[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]).
Prior to trial, the court heard arguments concerning Molineux (People v Molineux, 168 NY 264 [1901]) and Sandoval (People v Sandoval, 34 N.Y.2d 371 [1979]) evidence the prosecution wished to present to the jury, respectively, in its case in chief and should defendant testify.
"To determine whether Molineux evidence may be admitted in a particular case, the trial court must engage in the following two-part inquiry: first, the proponent of the evidence must identify some material issue, other than the defendant's criminal propensity, to which the evidence is directly relevant; once the requisite showing is made, the trial court must weigh the evidence's probative value against its potential for undue prejudice to the defendant. If the evidence has substantial probative value and is directly relevant to the purpose-other than to show criminal propensity-for which it is offered, the probative value of the evidence outweighs the danger of prejudice and the court may admit the evidence" (People v Cass, 18 N.Y.3d 553, 560 [2012] [citations omitted]).
Contrary to defendant's preserved contention, the District Court's Molineux ruling did not constitute an abuse of discretion (see People v Till, 87 N.Y.2d 835, 837 [1995] [" Molineux prescribes the litany of exceptions that allow uncharged crimes into evidence, under exceptional circumstances, with limiting cautionary instructions... when, as here, it bears on the motive and state of mind in relation to an avoidance of apprehension during immediate flight from a crime and is found to be needed as background material or to complete the narrative of the episode"] [internal quotation marks and citation omitted]; People v Ibe, 50 A.D.3d 396, 396-397 [2008] ["The court properly admitted evidence that, at the time of the incident, defendant was driving a taxi without a valid license to do so. Without this evidence, it would have been difficult for the jury to understand why defendant fled from the police and engaged in a course of unusual conduct rather than simply submitting to being stopped for a traffic violation"]).
The District Court also properly permitted "use by the prosecutor of prior convictions... for the purpose of impeaching [] defendant's credibility" when defendant testified (Sandoval, 34 N.Y.2d at 374). The court took deliberate pains to mitigate any possible prejudice by precluding the People from inquiring about the facts underlying defendant's admissible convictions, precluding the People from inquiring about convictions prior to 2010, and, as defendant concedes, providing a satisfactory limiting instruction to the jury concerning the restricted ways in which Molineux and Sandoval evidence could be considered and weighed (see id. at 376; People v Fiore, 34 N.Y.2d 81, 84 [1974]).
Defendant's contention that the District Court "announced a blanket ban on legal protests from either side" is unpreserved. In any event, defendant's argument fails because the District Court in fact did not in any way prevent the parties from making or explaining any objection. Rather, the court merely prohibited the making of speaking objections in the jury's presence, and "invited counsel to make such a record" outside of the jury's presence (People v Escobar, 79 A.D.3d 469, 469 [2010]).
Defendant's legal sufficiency arguments-raised as to his convictions of resisting arrest and using a mobile telephone while driving-were not preserved by his general, unspecified dismissal motions at the end of the People's and the defense's respective cases (see CPL 470.05 [2]; People v Hawkins, 11 N.Y.3d 484, 492 [2008]). In any event," 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [offenses] beyond a reasonable doubt'" (People v Contes, 60 N.Y.2d 620, 621 [1983], quoting Jackson v Virginia, 443 U.S. 307, 319 [1979]). Contrary to defendant's further contention, those convictions were not against the weight of the trial evidence.
Lastly, defendant's argument regarding two jury notes submitted during the deliberative process is unpreserved, as defense counsel affirmatively consented to the District Court's resolution of each. In any event, defendant's arguments regarding both jury notes are unavailing. In its first contested note, the jury asked whether running from the police in fear constitutes resisting arrest. After reading the note to the parties, the District Court stated that it was inclined to reinstruct the jury regarding the elements of the crime of resisting arrest (Penal Law § 205.30). Defense counsel responded on the record that he did not object to this plan. The court's re-instruction of the elements of resisting arrest served its proper purpose of refocusing the jurors' collective attention onto the proper elements of the criminal statute.
In their second note, the jurors stated "we have rested." The court, after informing the parties of the note, offered to have the jury brought back in, or in the more expedient alternative, to have the court officer ask the jurors to "explain what they mean that we have rested." Defense counsel consented to sending in the court officer to relay the court's message. Furthermore the court officer clarified the court's request, asking, "Do you want another note, Judge?" The court replied affirmatively. The replacement note sent by the jury stated, "We have reached a verdict."
Defendant's contention that the District Court, by having the court officer speak with the jurors, improperly delegated its authority to the court officer is unpreserved. Defendant's concomitant assertion that preservation is not required because the court's action here constituted a mode of proceedings error, for which preservation is not required, is incorrect. Rather, "the court officer's communications related to administrative matters so as to fall within their supervisory role" (People v Dargan, 101 A.D.3d 1143, 1144 [2012]; see e.g. People v Buxton, 192 A.D.2d 289 [1993]). For this reason, defendant's argument must fail on the merits as well.
Accordingly, the judgments of conviction are affirmed.
GARGUILO, P.J., EMERSON and DRISCOLL, JJ., concur.