        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

900
KA 11-00411
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CARDELL RICHARDSON, ALSO KNOWN AS “C,”
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARTIN P. MCCARTHY,
II, OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Patricia D.
Marks, J.), rendered January 14, 2011. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree,
attempted criminal possession of a weapon in the third degree and
pedestrian on roadway.

     It is hereby ORDERED that the   judgment so appealed from is
unanimously modified on the law by   reversing that part convicting
defendant of assault in the second   degree and dismissing count four of
the indictment and as modified the   judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
nonjury trial of, inter alia, assault in the second degree (Penal Law
§ 120.05 [3]) and attempted criminal possession of a weapon in the
third degree (§§ 110.00, 265.02 [1]), defendant contends that the
evidence is legally insufficient to support the assault conviction.
We agree. A person is guilty of assault in the second degree under
Penal Law § 120.05 (3) when, “[w]ith intent to prevent . . . a police
officer . . . from performing a lawful duty . . . , he or she causes
physical injury to such . . . police officer” (id.). Here, a police
officer stopped defendant for walking in the middle of a roadway in
violation of Vehicle and Traffic Law § 1156 (a), and the suppression
court found that the search of defendant’s person by another officer
was not lawful (see People v Adams, 32 NY2d 451, 455; People v Marsh,
20 NY2d 98, 101; cf. People v Troiano, 35 NY2d 476, 477-478). We have
previously held that even the more limited pat-down search of a
traffic offender “is not authorized ‘unless, when the [person or]
vehicle is stopped, there are reasonable grounds for suspecting that
the officer is in danger or there is probable cause for believing that
the offender is guilty of a crime rather than merely a simple traffic
infraction’ ” (People v Everett, 82 AD3d 1666, 1666, quoting Marsh, 20
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                                                         KA 11-00411

NY2d at 101). Here, as in Everett, the search of defendant was
unauthorized, and the officer was injured only after he attempted to
perform the unlawful search (see id.). Viewing the evidence in the
light most favorable to the People (see People v Contes, 60 NY2d 620,
621), we thus conclude that the evidence is legally insufficient to
establish that the officer was injured while undertaking a lawful duty
(see Everett, 82 AD3d at 1667; see generally People v Bleakley, 69
NY2d 490, 495). We therefore modify the judgment by reversing that
part convicting defendant of assault in the second degree and
dismissing count four of the indictment.

     In light of our conclusion, we do not reach defendant’s
contention that County Court should have dismissed the assault count
under the theory of law of the case.

     We reject defendant’s contention that the evidence is legally
insufficient to support the conviction of attempted criminal
possession of a weapon in the third degree. During a struggle with
police officers after the unlawful search, defendant grabbed and held
onto an officer’s service weapon, which was secured in her holster.
The testimony of the officers concerning defendant’s attempts to grab
that officer’s weapon and remove it from the holster is sufficient to
establish that defendant intended to possess the weapon and “engage[d]
in conduct which tend[ed] to effect the commission of [the] crime” of
criminal possession of a weapon in the third degree (Penal Law §
110.00). Contrary to defendant’s contention, the People were not
required to establish the operability of the officer’s service weapon
because the operability of a weapon is not a necessary element of the
crime of attempted criminal possession of a weapon in the third degree
(see People v Saunders, 85 NY2d 339, 342-343). Furthermore, viewing
the evidence in light of the elements of that crime as well as the
traffic infraction in this nonjury trial (see People v Danielson, 9
NY3d 342, 349), we conclude that the verdict on those two counts is
not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495).

     Contrary to defendant’s further contention, the grand jury
proceeding was not defective, and the court thus did not err in
refusing to dismiss the indictment on that ground (see CPL 210.20 [1]
[c]). One of the grand jurors indicated that he knew the officer who
had been injured in the assault. At that point, the prosecutor
engaged the grand juror in the requisite “further inquiry” outside the
presence of the other grand jurors (People v Cullen, 175 AD2d 658,
659, lv denied 78 NY2d 1010). That inquiry revealed that the
relationship between the grand juror and the officer, who saw each
other at social outings one to two times a year, “was a nominal and
relatively inconsequential relationship” (People v Dykeman, 47 Misc 3d
689, 691), i.e., the grand juror and the officer did not have a
“ ‘close relationship’ ” that would “ ‘raise[] the real risk of
potential prejudice’ ” (People v Connolly, 63 AD3d 1703, 1705).
Moreover, the grand juror specifically affirmed that he would be able
to remain fair and impartial (cf. People v Revette, 48 AD3d 886, 888).
We thus conclude that “the prosecutor’s voir dire of the grand juror
was appropriate and sufficient to ensure such juror’s impartiality”
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                                                         KA 11-00411

(People v Farley, 107 AD3d 1295, 1296, lv denied 21 NY3d 1073).

     Finally, we conclude that the sentence imposed on the remaining
counts of the indictment is not unduly harsh or severe.




Entered:   October 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
