                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 10, 2014                      104200
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

RANDY L. ROACH,
                    Appellant.
________________________________


Calendar Date:    May 29, 2014

Before:   Peters, P.J., Rose, Egan Jr., Lynch and Devine, JJ.

                              __________


     Richard V. Manning, Parishville, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                              __________


Peters, P.J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Rogers, J.), rendered April 14, 2011, upon a verdict
convicting defendant of the crimes of menacing a police officer
(two counts) and resisting arrest.

      Defendant was charged in a five-count indictment arising
out of a confrontation with two state troopers during which he
carried and repeatedly refused to relinquish a shotgun. After a
jury trial, defendant was convicted of resisting arrest and two
counts of menacing a police officer. County Court sentenced him
to an aggregate term of three years in prison followed by 1½
years of postrelease supervision, and this appeal ensued.

     Defendant asserts that the verdict is legally insufficient
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and against the weight of the evidence, specifically claiming
that the evidence failed to establish that he intended to place
the two state troopers in fear of physical injury or that the
troopers' fear was reasonable under the circumstances. "A person
is guilty of menacing a police officer . . . when he or she
intentionally places or attempts to place [the] officer . . . in
reasonable fear of physical injury . . . or death by displaying a
. . . shotgun . . ., whether operable or not" (Penal Law
§ 120.18; see People v Williams, 98 AD3d 1279, 1279 [2012], lv
denied 20 NY3d 1066 [2013]). "Intent may be inferred from a
defendant's conduct and from the surrounding circumstances"
(People v McCottery, 90 AD3d 1323, 1324 [2011], lv denied 19 NY3d
975 [2012] [internal quotation marks and citations omitted]).

      The trial testimony established that, on the morning of
November 30, 2009, a state trooper responded to a 911 call from
defendant's mother reporting a domestic dispute at her residence.
While speaking with defendant's mother inside the enclosed porch
of the residence, the trooper heard defendant yell for him to get
off the property. As the trooper descended the steps of the
porch, he turned to see defendant – who had appeared on the porch
– holding a shotgun "pointed in [his] direction." The trooper
testified that he immediately drew his sidearm and repeatedly
ordered defendant to drop his gun. Defendant refused, lowered
the shotgun, pointed it toward the ground and turned away from
the trooper. Defendant then turned slightly back toward the
trooper and raised the gun approximately eight inches before
pointing it back down and moving quickly off of the porch and
toward the back of the house.

      By this time, a second trooper had arrived at the scene.
They both took cover behind the edge of the porch and
subsequently behind a vehicle parked in the driveway while
continuing to demand that defendant drop his weapon. According
to the troopers, defendant entered and exited the rear door of
the residence at least twice holding the shotgun, although not
pointing it at them, while repeatedly yelling for the officers to
"come and get the gun . . . from him." Defendant then came to
the edge of the driveway approximately 15 to 20 feet from the
troopers, racked the shotgun multiple times and stated that it
was not loaded. Believing defendant's weapon to be unloaded,
                              -3-                104200

both troopers attempted to approach defendant, who moved quickly
behind a detached garage and out of sight for approximately 5 to
10 seconds before passing back into the house with the gun.
According to one of the troopers, this was enough time for
defendant to load the shotgun. Defendant again came to the edge
of the driveway, this time unarmed, and was ultimately arrested
after a struggle with the troopers. Upon searching defendant,
the troopers found five bird-shot shotgun shells in his pocket.
When the shotgun was seized from within the residence, it was not
loaded. One of the troopers testified that, during this
incident, he "was very concerned for [his] welfare" and "[s]cared
that [he] might get shot," while the other trooper stated that he
was "worried that somebody was going to get hurt or shot."

      Defendant does not challenge the troopers' account of the
incident, instead noting that he never directly pointed the
shotgun at either trooper and, with one brief exception, carried
the gun pointed upward in a "port arms" position without ever
placing his finger on the trigger. However, upon viewing the
evidence in the light most favorable to the People, we find a
valid line of reasoning and permissible inferences from which the
jury could have rationally concluded that defendant intended to
place the two troopers in fear of physical injury or death and
that such fear on their part was reasonable (see People v
Williams, 98 AD3d at 1279-1280; People v McCottery, 90 AD3d at
1324-1325). Further, after weighing the relative probative force
of the testimony and the strength of the conflicting inferences
to be drawn therefrom, we are unpersuaded that the jury's verdict
is against the weight of the evidence (see People v Principio,
107 AD3d 1572, 1573 [2013], lv denied 22 NY3d 1090 [2014]; People
v McCottery, 90 AD3d at 1324-1325; People v Beverly, 74 AD3d
1480, 1481 [2010], lv denied 15 NY3d 802 [2010]).

      Defendant next asserts that County Court erred in denying
his motion to suppress the shotgun because the warrantless entry
into his mother's residence was without her consent and no
emergency circumstances existed. Even assuming that suppression
of the shotgun was warranted, we find that any such error is
harmless beyond a reasonable doubt (see People v Moon, 279 AD2d
804, 805 [2001], lv denied 96 NY2d 803 [2001]; People v
Maldonado, 75 AD2d 558, 559 [1980]). In light of the
                              -4-                104200

uncontroverted and overwhelming evidence of defendant's guilt,
"there is no reasonable possibility that any error permitting the
shotgun itself to be admitted into evidence . . . in any way
contributed to [defendant's] convictions" (People v Moon, 279
AD2d at 806; see People v Crimmins, 36 NY2d 230, 237 [1975];
People v Wells, 143 AD2d 708, 709 [1988], lv denied 73 NY2d 861
[1988]; compare People v Levan, 62 NY2d 139, 145-146 [1984]).

      Nor was defendant denied the effective assistance of
counsel. Defendant faults counsel for failing to object to the
verdict convicting him of menacing a police officer as being
repugnant, given his acquittal on the charge of criminal
possession of a weapon in the third degree. However, because the
jury could have determined that an unloaded shotgun did not
constitute a dangerous or deadly instrument under the present
circumstances, acquittal of the weapon possession charge did not
negate an element of the crime of menacing a police officer (see
Penal Law §§ 10.00 [12], [13]; 120.18; 265.01 [2]; 265.02 [1];
People v Peralta, 3 AD3d 353, 355 [2004], lv denied 2 NY3d 764
[2004]; People v Wilson, 252 AD2d 241, 248-249 [1998]; People v
Wood, 10 AD2d 231, 234 [1960]). Nor can counsel be deemed
ineffective for failing to object to County Court's adequate
apprisal of defendant's Antommarchi rights (see People v Flinn,
22 NY3d 599, 601-602 [2014]; People v Hoppe, 96 AD3d 1157, 1157-
1158 [2012], lv denied 19 NY3d 1026 [2012]). Viewed in its
entirety, the record reveals that counsel made appropriate
motions, thoroughly cross-examined the witnesses, elicited
testimony favorable to defendant, made cogent opening and closing
statements, obtained a dismissal of one count of the indictment
and secured an acquittal on another count. Considering the
totality of the circumstances, we find that defendant was
afforded meaningful representation (see People v Benevento, 91
NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 146-147
[1981]).

      Finally, defendant was not deprived of a fair trial based
on the People's failure to turn over a tape recording of his
mother's 911 call. The People provided sufficient proof that the
tape recording was inadvertently destroyed and there is no
reasonable possibility that such evidence would have affected the
jury's verdict (see People v Fuentes, 12 NY3d 259, 263 [2009];
                              -5-                  104200

People v Auleta, 82 AD3d 1417, 1420-1421 [2011], lv denied 17
NY3d 813 [2011]; People v Vancleave, 286 AD2d 941, 941 [2001], lv
denied 97 NY2d 689 [2001], cert denied 537 US 1052 [2002]).
Defendant's remaining contentions have been reviewed and found to
be without merit.

     Rose, Egan Jr., Lynch and Devine, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
