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

508
KA 10-01052
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN CIPOLLINA, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered April 14, 2010. The judgment convicted
defendant, upon a jury verdict, of reckless endangerment in the second
degree, assault in the second degree, unlawful fleeing a police
officer in a motor vehicle in the third degree, reckless driving,
speeding, failure to obey red light, failure to obey no passing zone
and driving without a safety belt.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, reckless endangerment in the
second degree (Penal Law § 120.20), assault in the second degree
(§ 120.05 [3]), and unlawful fleeing a police officer in a motor
vehicle in the third degree (§ 270.25). We reject the initial
contention of defendant that Supreme Court erred in failing sua sponte
to order a competency hearing (see People v Tortorici, 92 NY2d 757,
765-766, cert denied 528 US 834; People v Morgan, 87 NY2d 878,
879-880; see also CPL 730.30 [2]). Shortly after defendant’s arrest,
the court ordered that defendant undergo a competency examination
pursuant to CPL 730.30. Two psychiatrists then independently examined
defendant, and each determined that he was not an incapacitated
person. Due to concerns raised by defense counsel, the court ordered
that defendant undergo another set of competency examinations shortly
before trial. The same two psychiatrists again independently
determined that defendant was not an incapacitated person. “[I]t is
perfectly well settled that a trial court is entitled to give weight
to the findings of competency derived from the ordered examinations”
(People v Ferrer, 16 AD3d 913, 914, lv denied 5 NY3d 788, citing
Morgan, 87 NY2d at 880; see CPL 730.30 [1]). “ ‘Moreover, [we]
note[ ] that defense counsel did not request a hearing and, as it has
                                 -2-                           508
                                                         KA 10-01052

been observed, [defense] counsel was in the best position to assess
defendant’s capacity’ ” (People v Chicherchia, 86 AD3d 953, 954, lv
denied 17 NY3d 952, quoting Ferrer, 16 AD3d at 914; see People v
Taylor, 13 AD3d 1168, 1170, lv denied 4 NY3d 836). The court also
“ ‘had the opportunity to interact with and observe defendant . . .,
[and thus] the court had adequate opportunity to properly assess
defendant’s competency’ ” (Chicherchia, 86 AD3d at 954).

     Defendant contends that, with respect to his conviction of
assault in the second degree (Penal Law § 120.05 [3]), the evidence is
legally insufficient to establish that he caused the injuries to the
police officer who was struck by another patrol car arriving on the
scene after defendant abandoned his vehicle following a high-speed
chase and the police officer had pursued defendant on foot. We reject
that contention (see People v Carncross, 14 NY3d 319, 325-326; see
generally People v Bleakley, 69 NY2d 490, 495). It is well settled
that, “[w]here a defendant’s flight naturally induces a police officer
to engage in pursuit, and the officer is killed [or injured] in the
course of that pursuit, the causation element of the crime will be
satisfied” (Carncross, 14 NY3d at 325). “Liability will attach even
if the defendant’s conduct is not the sole cause of [the injuries] . .
. if the actions were a sufficiently direct cause of the ensuing
[injuries] . . . [A]n act qualifies as a sufficiently direct cause
when the ultimate harm should have been reasonably foreseen” (People v
DaCosta, 6 NY3d 181, 184 [internal quotation marks omitted]).
Contrary to defendant’s further contention, we conclude that, viewed
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), the evidence at trial is legally sufficient to support
the conviction of reckless endangerment in the second degree (see §
120.20; see generally Bleakley, 69 NY2d at 495). In addition, viewing
the evidence in light of the elements of the crimes as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     Defendant consented to the annotations on the verdict sheet and
thus waived his present contention that the verdict sheet was
improperly annotated (see CPL 310.20 [2]; People v Brown, 90 NY2d 872,
874; People v Hicks, 12 AD3d 1044, 1045, lv denied 4 NY3d 799).
Additionally, defendant failed to preserve for our review his
contention that the count of the indictment charging him with unlawful
fleeing a police officer in a motor vehicle was duplicitous (see
People v Sponburgh, 61 AD3d 1415, 1416, lv denied 12 NY3d 929), and we
decline to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]).

     We reject the further contention of defendant that he was denied
effective assistance of counsel (see generally People v Caban, 5 NY3d
143, 152; People v Baldi, 54 NY2d 137, 147). Finally, the sentence is
not unduly harsh or severe.

Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
