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THE PEOPLE DID NOT PROVE THE POLICE OFFICER DEFENDANT PUNCHED WAS ENGAGED IN A LAWFUL DUTY AT THE TIME OF THE ASSAULT, THE PEOPLE ARE HELD TO THE ‘HEAVIER BURDEN’ IN THE DEFINITION OF ‘LAWFUL DUTY’ PROVIDED TO THE JURY WITHOUT OBJECTION, DEFENDANT’S ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department reversed defendant’s assault conviction. Defendant and his brother were sitting on an elevated subway grate when they were approached by two police officers. Defendant’s brother became angry, telling one of the officers to leave him alone and yelling. Defendant restrained his brother, telling him to calm down. At some point defendant suddenly punched one of the police officers. The jury was instructed that, to find the defendant guilty of a violation of Penal Law 120.05(3), the injured police officer must have been engaged in a lawful duty at the time of the assault. The definition of “lawful duty” provided to the jury included a “heavier burden” of proof, to which the People must be held because there was no objection to the instruction. Pursuant to the law as provided to the jury, defendant’s assault conviction was against the weight of the evidence:

Since the People failed to register any objection to the Supreme Court’s supplemental charge, they were bound to satisfy the heavier burden of proof contained therein … , and we must weigh the evidence in light of the elements of the crimes as charged to the jury without objection … .

The consistent testimony of the two police officers shows that they were not in the process of arresting the defendant when the assault occurred. Moreover, while the trial evidence establishes that the defendant’s brother was yelling profanities at the female officer and displaying irate behavior, neither of the officers testified that they intended at any time to arrest the defendant’s brother for any offense, or were attempting to do so at the time of the assault. Under these circumstances, and particularly in light of the highly specific supplemental charge given by the trial court on the meaning of “lawful duty,” the evidence was factually insufficient to prove that the female officer was engaged in a lawful duty, as that term was defined to the jury by the Supreme Court, at the time of the assault by the defendant … . People v Truluck, 2019 NY Slip Op 04969, Second Dept 6-19-19

 

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