State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 14, 2015 105007
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
VINCENT HARRIS,
Appellant.
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Calendar Date: March 23, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
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Eugene P. Grimmick, Troy, for appellant.
Joel E. Abelove, District Attorney, Troy (Vincent J.
O'Neill of counsel), for respondent.
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Devine, J.
Appeal from a judgment of the County Court of Rensselaer
County (Ceresia, J.), rendered March 2, 2012, upon a verdict
convicting defendant of the crimes of reckless endangerment in
the second degree and reckless driving.
In the spring of 2011, David Kadio became a suspect in a
string of burglaries and was placed under electronic and physical
surveillance by investigators from various law enforcement
agencies. Defendant is Kadio's uncle and, on June 2, 2011, the
two men drove to the Town of Schodack, Rensselaer County. Kadio
attempted to burglarize a residence upon their arrival, but was
caught in the act by an investigator who was tailing them. Kadio
fled in a vehicle driven by defendant, and the two were
apprehended after a chase.
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Defendant and Kadio were thereafter charged in an
indictment with numerous offenses. Kadio entered into a plea
agreement that obliged him to testify against defendant at trial.
Following that jury trial, defendant was found guilty of reckless
endangerment in the second degree and reckless driving as the
result of his actions during the chase. County Court sentenced
defendant to an aggregate jail term of one year, and he now
appeals.
We affirm. Defendant initially asserts that the verdict
was against the weight of the evidence, a claim that requires us
to review "the sufficiency of the evidence relating to each
element of the charged crime[s]" (People v Butler, 126 AD3d 1122,
1122 n [2015]; see People v Danielson, 9 NY3d 342, 349 [2007]).
The testimony of two State Police investigators who attempted to
stop defendant during the chase, Thomas Jensen and John Dorn, are
of particular relevance to that review. Jensen testified that he
drove into defendant's lane of traffic to force him into a ditch.
Defendant, who did not have a driver's license, left the road and
drove past Jensen's vehicle on the shoulder. Defendant then
encountered Dorn, who had blocked a significant portion of the
road with his vehicle and, in an effort to cover the remaining
part of the road, exited his vehicle and drew his weapon.
Defendant swerved toward Dorn at a high rate of speed, forcing
him to scramble out of the way, and then proceeded around his
vehicle. Defendant offered a different version of events but,
according deference to the credibility determinations of the
jury, the foregoing amply establishes that he recklessly created
a substantial risk of injury to Dorn and unreasonably endangered
users of a public highway (see People v Earley, 121 AD3d 1192,
1193-1194 [2014]; People v Brinson, 36 AD3d 418, 418 [2007]; see
also People v Chaney, 163 AD2d 617, 618-619 [1990], lv denied 76
NY2d 892 [1990]). Thus, we cannot say that the verdict was
against the weight of the evidence.
Next, defendant argues that the People impermissibly
altered their theory of the case at trial. Defendant
specifically points to the reckless driving count of the
indictment, which asserted that he "dr[o]ve his vehicle at speeds
in excess of 55 miles per hour in the wrong lane and then onto
the shoulder of the road." The People amplified their
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allegations in a bill of particulars by asserting that defendant
had nearly struck a law enforcement officer during the chase.
The People relied upon those acts at trial and, suffice it to
say, defendant was provided "with fair notice of the accusations
against him and the People's theory at trial was the same in all
material respects to that charged in the indictment" (People v
Osinowo, 28 AD3d 1011, 1013 [2006], lv denied 7 NY3d 792 [2006];
see People v Charles, 61 NY2d 321, 327-329 [1984]).
Defendant lastly contends that he received the ineffective
assistance of counsel. He notes one purported error in support
of that contention, namely, the failure of defense counsel to
object to the admission of a photograph depicting the scene as
defendant approached Dorn. Dorn testified that the photograph
was taken on the same day as the crime and that it accurately
represented where he and his vehicle were when the crime
occurred. Even accepting the assertion of defendant that an
accurate representation of the scene somehow prejudiced him, it
remains doubtful that any objection by defense counsel would have
succeeded (see People v Wood, 79 NY2d 958, 960 [1992]; People v
Hampton, 64 AD3d 872, 875 [2009], lv denied 13 NY3d 796 [2009]).
This is accordingly not the "exceptional case[] in which an error
is so clear-cut, egregious and decisive that it will overshadow
and taint the whole of the representation" (People v Blake, 24
NY3d 78, 81 [2014]; see People v Vasquez, 20 NY3d 461, 468
[2013]). The true question is whether the record as a whole
reveals that defendant received meaningful representation and,
inasmuch as it does, we perceive no reason to disturb the
judgment of conviction (see People v Blake, 24 NY3d at 81; People
v Griffin, 122 AD3d 1068, 1070-1071 [2014]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
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ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court