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People v Bess (Aiyetoro)
2015 NY Slip Op 51431(U) [49 Misc 3d 131(A)]
Decided on September 18, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on September 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: IANNACCI, J.P., TOLBERT and GARGUILO, JJ.
2012-2743 W CR

The People of the State of New York, Respondent,

against

Aiyetoro Bess, Appellant.


Appeal from judgments of the City Court of Yonkers, Westchester County (Edward J. Gaffney, J.), rendered December 3, 2012. The judgments convicted defendant, upon jury verdicts, of obstructing governmental administration in the second degree, unlicensed operation of a motor vehicle, and driving at a speed greater than is reasonable and prudent, respectively.

ORDERED that the judgment convicting defendant of driving at a speed greater than is reasonable and prudent is reversed, on the law, the accusatory instrument charging that offense is dismissed, and the surcharge, if paid, is remitted; and it is further,

ORDERED that the judgments convicting defendant of obstructing governmental administration in the second degree and unlicensed operation of a motor vehicle, respectively, are affirmed.

In February 2012, in a misdemeanor information, defendant was charged with obstructing governmental administration in the second degree (Penal Law § 195.05), resisting arrest (Penal Law § 205.30) and disorderly conduct (Penal Law § 240.20 [3]). Defendant was also charged in separate simplified traffic informations with unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]) and driving at a speed greater than is reasonable and prudent (Vehicle and Traffic Law § 1180 [a]), respectively. Following a jury trial, defendant was convicted of obstructing governmental administration in the second degree, unlicensed operation of a motor vehicle and driving at a speed greater than is reasonable and prudent, and was acquitted of resisting arrest and disorderly conduct.

On appeal, defendant contends that the judgments of conviction should be reversed because the trial court unduly injected itself into the proceedings by excessively questioning him, which caused the court to assume a prosecutorial role; that the verdict convicting him of obstructing governmental administration in the second degree was repugnant to his acquittal of resisting arrest; that the evidence was legally insufficient to support the conviction of driving at a speed greater than is reasonable and prudent; that the verdict convicting him of driving at a speed greater than is reasonable and prudent was against the weight of the evidence; and that he was denied the effective assistance of counsel.

Defendant's contention regarding the trial judge's examination is unpreserved for appellate review (see People v Charleston, 56 NY2d 886, 887 [1982]; People v Sanchez, 278 AD2d 166 [2000]), and we decline to review it in the interest of justice.

Vehicle and Traffic Law § 1180 (a) provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." "Subdivision (a) of section 1180 is not intended to cover all possible acts of careless driving. It is specifically directed against excessive speed" (People v Davis, 24 NY2d 796, 797 [1969]). Upon a review of the evidence adduced at trial, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the People failed to establish, beyond a reasonable doubt, defendant's guilt of driving at a speed greater than was reasonable and prudent, inasmuch as the evidence did not demonstrate that the speed of defendant's vehicle was not reasonable and prudent under the conditions presented (Vehicle and Traffic Law § 1180 [a]). Consequently, the judgment convicting defendant of driving at a speed greater than is reasonable and prudent is reversed and the simplified traffic information charging this offense is dismissed.

Defendant's contention that the verdict convicting him of obstructing governmental administration in the second degree was repugnant to his acquittal of resisting arrest is unpreserved for appellate review since this objection was not raised before the court discharged the jury (see CPL 470.05 [2]; People v Alfaro, 66 NY2d 985, 987 [1985]; People v Satloff, 56 NY2d 745, 746 [1982]; People v Jackson, 19 AD3d 614, 615 [2005]). In any event, defendant's contention lacks merit.

A conviction must be reversed on the ground of repugnancy only in those instances where an "acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" (People v Tucker, 55 NY2d 1, 7 [1981]). A determination of whether the verdict is repugnant rests entirely upon a review of the trial court's charge (see People v Green, 71 NY2d 1006, 1008 [1988]; People v Viruet, 215 AD2d 417, 417 [1995]). A review of the essential elements of obstructing governmental administration in the second degree and resisting arrest, as contained in the charge to the jury, reveals that the verdict convicting defendant of obstructing governmental administration in the second degree was not repugnant to his acquittal of resisting arrest (see People v McLaurin, 50 AD3d 1515, 1516 [2008]; Matter of Johnetta T, 192 AD2d 416, 417 [1993]).

Furthermore, there is no merit to defendant's contention that he was denied the effective assistance of counsel because his trial attorney failed to make objections. As previously noted, since the verdicts are not repugnant, defendant's trial attorney cannot be faulted for not making a repugnancy objection prior to the discharge of the jury (see e.g. People v Satloff, 56 NY2d at 746; People v Johnson, 94 AD3d 1563, 1564 [2012]). Also, with regard to any other objections that the trial attorney failed to make, it is well settled that an attorney's "failure to make a[n] . . . argument that has little or no chance of success' does not amount to ineffective assistance" (People v Johnson, 94 AD3d at 1564, quoting People v Caban, 5 NY3d 143, 152 [2005]; see also People v Stultz, 2 NY3d 277, 287 [2004]). In view of the foregoing, the judgments convicting defendant of obstructing governmental administration in the second degree and unlicensed operation of a motor vehicle are affirmed.

Iannacci, J.P., Tolbert and Garguilo, JJ., concur.


Decision Date: September 18, 2015