People v Irizarry
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People v Irizarry 2017 NY Slip Op 32555(U) August 7, 2017 County Court, Westchester County Docket Number: 16-0161 Judge: Barbara G. Zambelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] ., . COUNTY COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -----------------~---------------~~-~--------------------------~-------x THE PEOPLE OF THE STATE OF ~~WjQRK · - against NATHAN IRIZARRY, l\UG. 0 7 2017 h( DECISION & ORDER Indictment No.: 16-0161 TIMOTHY C. IOONI . COUNTY CLERK COUNTY OF WESTCHESTER Defendant. - -------------------------------~---------------------------------------x ZAMBELLI, J. On June 23, 2017 defendant was found guilty by jury verdict of two counts of A~sault on a Police Officer and not guilty of two counts of Aggravated Assault on a Police Officer and Assault in. the First Degree. . . He moves pursuant to CPL 330.30 (1) to set aside the verdict on the grounds that the court committed reversible error in giving an unprompted instruction to the · jury during jury deliberations after fully responding to a jury note and on the further ground that the evidence was legally insufficient to establish defendant intended to . · prevent Police Officer Oliveri from performing a lawful duty. The People respond that Defendant has not preserved. the issue concerning the supplemental instruction and further that the Court's instruction was entirely appropriate in as much as it provided a meaningful response to the jury note which ' . was immediat~ly requested by the People and.after which the defense was gi.ven·a.n opportunity to be heard prior to the further jury instruction. They further counter · [* 2] ·that the evidence of intent. was legally sufficient. With regard to the note in question,. the jury sent in a nbte requesting the following: ."Can the Judge please define intent and t.ell us Jf it must ha.ppen before an action or if it can happen after an event has started" "Can the Judge redefinethe difference between Assault. In the First Degree and· Aggravated Assault on a Polic·e Officer" A copy of the. note was provided to the parties; the note was read into the· record. The court indicated it would re-read the expanded intent charge and reinstruct the jury on the el~ments . of ea·ch crime which procedure was consented . .. to by t~e parties. The Court called the jury into the courtroom, re reC!d th~ir'note to them and reinstructed them on the expanded intent instruction and both counts. · The jury was sent back into the jury room to resume deliberations. The pistrict Attorney almost immediately (within eight minutes) asked ·the court to give an additional instruction realizing that based on the testimony of Sergeant McGuinn~ . . the court had not meaningfu~ly answered the jury's first question, to wit, "tell us if it (intent) must happen before ~n action or if it can happen after an event has started". Defense counsel objected. The c.ourt agreed with the People, indicated . the further instruction and gave the supplemental instruct.ion to the jury~ [* 3] ·. . At the outset, the court finds tha~ both counts .were supported by legally sufficient evidence and more part_icularly that the People met their burden of establishing that defendant acted with intent to prevent Poli.ce Officer Oliveri from . p~rforming . . v. Campbell, 72 N.Y.2d 602). · a lawful duty. (See, People With rega.rd to the jury note, the court followed the procedure set forth in . People v. O'Ram·a, 78 N.Y.2d 270, 276 and its progeny. . The court provid.ed meaningful notice to the parties: copies of the note were provided to both sides; the Court read the note into the record and explained what the court proposed to tell thejury to which both sides consented. The jury was .called into the courtroom, the . . . . . . note was read to the jury, and the court in·structed the jury as indicated. . O'Rama . further requires that th~ co~rt provide a meaningful response to the jury note. ( lcJ, . . . see also People v. Mack,-27 N-.Y.3d 534). In this case, the District Attorney pointed out almost immediately that the expanded definition of intent did not answer the . . . jury's question. The prosecution's request was made in.front of all parties. Defense . . . '. was given an opportunity to respond. The expanded intent charge did not answer the jury's question which, based on the evidence present, was relevant onthe issue of intent at the point Sergeant McGuinn was dragged by the vehicie. The•court advised the partiesthat it intended to give the supplemental instruction and told the parties what the supplemental instruction would be. The jury was then brought back [* 4] into the j_ury room and given the supplemental instruction. Thus, the Court complied in all respects with O'Rama. Accordingly, defendant's mqtion .is denied . . The court considered the following papers on.this motion.: . -Notice of Motion and M.emorandum of Law; . · -Affirmation in Opposition; -Reply Memorandum of Law in Support of Defendant's Motion; PAPERS NUMBERED 1-22 · 23-41 42-54 This decision constitutes the order of the court. Dated: White Plains, New York August 7, 2017' ·.~· ' ~· BARBARA&MBELLI~ · .. COUNTY COURT JUDGE Hon. Anthony Scarpino, Jr. District Attorney,· Westchester County 11·1 Dr. Martin. Luther King Jr. Blvd: · . White Plains, New York 10601 , Attn: Tim Ward, Esq. Assistant. District Attorney. Peter H. Tilem, ~sq. Tilem & Associates 188 E. Post Road White Plains, New York 10601 . Lakisha C. Hickson Chief Clerk
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