Opinion
2003-452 N CR.
Decided September 26, 2005.
Appeal from judgments of the District Court of Nassau County, First District (William J. O'Brien, J.), rendered March 10, 2003. The judgments convicted defendant, upon a jury verdict, of unlawful imprisonment in the second degree, resisting arrest and criminal mischief in the fourth degree.
Judgments of conviction unanimously affirmed.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
Assuming arguendo that the failure of one of the several officers responding to the crime scene to preserve certain notes constituted a Rosario violation ( People v. Olivero, 289 AD2d 1082, 1083; People v. Mack, 180 AD2d 824, 825), we perceive no "reasonable possibility that the non-disclosure materially contributed to the result of the trial" (CPL 240.75; People v. Sorbello, 285 AD2d 88, 93). Although the court, over objection, declined to strike the officer's testimony, we find no abuse of discretion in the court's remedial action ( see People v. Carracedo, 89 NY2d 1059, 1062; People v. Martinez, 71 NY2d 937, 940). The court issued a strong curative instruction noting the violation and the negative inferences permitted thereon, to which the defense took no exception. Further, there is no indication of prosecutorial fault ( People v. Martinez, 71 NY2d at 940; see also People v. Johnson, 303 AD2d 208, 209; People v. Safford, 297 AD2d 828); the defense conceded at trial that the witness' testimony "didn't really add that much," and the defense merely speculates that the notes contained matters of exculpatory or impeachment value ( People v. Harris, 16 AD3d 286, 287). The defense made "effective use of this issue in cross-examination and summation" ( People v. Wilson, 2 AD3d 185, 186) and received other statements prepared by the officers ( People v. Campbell, 176 AD2d 814, 815). In the absence of any indication that the officer, who testified that he considered his involvement in the investigation marginal and that the notes were of no independent value, destroyed the notes in bad faith ( id.), the court's curative instruction sufficiently dissipated the prejudice to defendant to satisfy the statutory standard ( e.g. People v. Harris, 16 AD3d at 287).
We also cannot agree with defendant's contention that, under the circumstances, the resisting arrest count was duplicitous ( see People v. First Meridian Planning Corp., 86 NY2d 608, 615; People v. Keindl, 68 NY2d 410, 417-418) because it alleged three specific acts of resistance. We need not determine whether the apparently interrelated acts imply a continuous course of conduct ( People v. Ribowsky, 77 NY2d 284) in light of the court's charge, which instructed the jury that to convict the defendant of resisting arrest they must find that he committed each act of resistance alleged in the accusatory instrument ( People v. Hernandez, 235 AD2d 367, 368; People v. Fisher, 223 AD2d 493, 494), to which defendant made no objection nor sought an amended or augmented charge, thereby waiving any issue of the instruction's sufficiency ( People v. Fisher, 223 AD2d at 494; People v. Maldonado, 171 AD2d 695).
The accusatory instruments were facially sufficient ( People v. Casey, 95 NY2d 354, 360; People v. Urena, 199 AD2d 443, 444; People v. Collins, 178 AD2d 789; People v. Sylla, 7 Misc 3d 8, 10 [App Term, 2d 11th Jud Dists 2005]; see also People v. Getch, 50 NY2d 456, 465; People v. Bracey, 41 NY2d 296, 301) and there was ample proof of guilt ( People v. Yukl, 25 NY2d 585, 589; People v. Galvin, 253 AD2d 437, 438; People v. Gray, 189 AD2d 922, 923). It is well-settled that "it [is] not necessary that [a] defendant be specifically informed that he was to be arrested in order for a resisting arrest conviction to stand; it is sufficient that such knowledge was inferable from the surrounding facts and circumstances" ( People v. Gray, 189 AD2d 922, 923, supra; see also People v. Hamm, 254 AD2d 535, 536 [same]; People v. Galvin, 253 AD2d 437, 438, supra [defendant's "awareness that he is being arrested may be proven . . . from the attendant facts and circumstances"]; People v. Urena, 199 AD2d at 444; People v. Maturevitz, 149 AD2d 908). Given defendant's forceful separation from Corda, his sequestration in the kitchen, and his shoving of the police officer and attempt to exit the kitchen contrary to the officer's obviously lawful orders that he control his behavior and maintain his position, his awareness that the police observed his violent confrontation with another that resulted in physical injuries, his refusal to obey their orders to cease his violent conduct toward his immobilized antagonist, and the combined efforts of two officers to handcuff him and remove him to a patrol car over his profane verbal protest and violent physical resistance, the suggestion that defendant was unaware he was being arrested "strain[s] credulity" ( People v. Karim, 176 AD2d 670, 671; see also People v. Gray, 189 AD2d at 923).