Appeal from a judgment of the County Court of Delaware County (Becker, J.), rendered February 19, 2013, upon a verdict convicting defendant of the crimes of assault in the second degree (two counts), resisting arrest and obstructing governmental administration in the second degree, and the violation of disorderly conduct.
After speaking with the driver of the van, St. Jacques pulled alongside defendant, who had continued walking down the road, and indicated that he wished to speak with her. Defendant did not comply with St. Jacques’s request. Clark then exited the patrol vehicle and asked defendant to walk toward him, at which point defendant informed Clark that she did not wish to talk to him and threw a lemon wedge, striking him in the face. In response, Clark advised defendant that she was under arrest for disorderly conduct. When defendant attempted to walk away, Clark grabbed her arm, and defendant, in turn, bit Clark’s hand. St. Jacques then exited the patrol vehicle to assist Clark in subduing defendant, whom both officers described as very slippery. The officers eventually were able to handcuff defendant, but not before she (1) punched St. Jacques in the face, head butted him and bit his hand, (2) bit Clark on the side of his head (twice) and bit his left inner thigh (resulting in a sizeable bruise), and (3) was tased five times with Clark’s stun gun.
Following a jury trial, defendant was convicted as charged. County Court, among other things, granted defendant a conditional discharge with respect to the disorderly conduct charge and, as to the balance of the indictment, sentenced defendant to a term of incarceration of six months followed by five years of probation. Defendant now appeals, contending that the jury’s verdict is against the weight of the evidence.
We affirm. “A person is guilty of assault in the second degree when . . . [w]ith intent to prevent a . . . police officer . . . from performing a lawful duty . . . he or she causes physical injury to such . . . police officer” (Penal Law § 120.05 [3]; see
Here, St. Jacques and Clark collectively testified that they first encountered defendant walking down the centerline of a village street shortly before 10:00 p.m. on the night in question and engaging a stopped motorist in conversation. When they attempted to speak with defendant, she refused, walked away and thereafter threw a lemon wedge, striking Clark in the face. Upon being advised that she was under arrest for disorderly conduct, defendant broke free of Clark’s grasp and bit him on the hand, refused repeated orders to stop struggling and continued to fight both officers — quite literally — “tooth and nail” until they finally were able to subdue her. Notably, defendant does not materially dispute the officers’ accounts of her
Although defendant testified at trial that neither St. Jacques nor Clark identified themselves as police officers, she acknowledged that the occupants of the vehicle that approached her were in uniform, and one cannot use physical force to resist arrest “when it would reasonably appear” that the individual attempting to effectuate the arrest is a police officer (Penal Law § 35.27). Further, with respect to defendant’s asserted mental impairment,3 we note that defendant underwent a pretrial CPL article 730 examination, at the conclusion of which both a psychiatrist and a psychologist found defendant to be competent to stand trial. Defendant neither contested this finding,
Peters, P.J., Rose and Lynch, JJ., concur. Ordered that the judgment is affirmed.
1.
Intent to cause physical injury to a police officer is not an element of assault in the second degree under Penal Law § 120.05 (3) (see People v Rojas, 97 NY2d 32, 39-40 [2001]).
2.
Here, with respect to the charge of disorderly conduct, both theories of liability were submitted to the jury, and the jury thereafter found defendant guilty upon the theory that she recklessly obstructed vehicular traffic.
3.
Defendant testified at trial that, prior to her encounter with St. Jacques and Clark on the evening in question, she had engaged in a conversation with a man (during daylight hours) who purportedly told defendant that he and his friends were vampires and that they would be returning later that evening to attack defendant and her family. Upon appeal, defendant now argues that she believed that St. Jacques and Clark “were not police officers but, instead, terrifying ‘vampires’ ” who, in turn, were related to the individual whom she encountered earlier in the day. The flaw in defendant’s argument on this point is twofold. First, although defendant indeed testified that she thought that St. Jacques and Clark were “related” to the unidentified man who purportedly had threatened her, defendant never testified that she believed that St. Jacques and Clark were in fact vampires. Additionally, as to the man (and his friends) in question, defendant acknowledged that she “didn’t think that they were serious [about being vampires]” and that she “didn’t actually think that they would come [back] and attack [her and her family].”