State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 7, 2016 107450 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

DOMONEC TUCKER,

Appellant.

________________________________

Calendar Date: June 1, 2016

Before: Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

__________

Hug Law, PLLC, Albany (Matthew C. Hug of counsel), for

appellant.

P. David Soares, District Attorney, Albany (Brittany L.

Grome of counsel), for respondent.

__________

Peters, P.J.

Appeal from a judgment of the Supreme Court (McDonough,

J.), rendered March 6, 2015 in Albany County, upon a verdict

convicting defendant of the crime of assault in the second

degree.

In the early morning hours of February 23, 2013, three City

of Albany police officers responded to a 911 call in which the

caller requested police assistance but did not provide any detail

as to the nature of the emergency. Upon arriving at the scene,

officers Jason Seward and Jarrod Jourdin found a vehicle

abandoned at an intersection and saw defendant, who was

approximately a block away from the intersection, struggling with

a male over a purse. Seward identified himself as a police
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officer and commanded defendant and the male to come towards him.

Each complied, with the male behaving aggressively while

approaching Seward. At this point, officer Joseph Smith arrived

and observed defendant and the male walking towards Seward.

Seward and Jourdin thereafter detained the male, and Smith

approached defendant with the belief that a domestic incident had

occurred between defendant and the male and that the two should

be separated. 

After Smith approached defendant, he saw tears on

defendant's face and then began questioning her in an effort "to

assess whether she was okay" and to investigate the 911 call. 

According to Smith, defendant did not respond to his questions

and, instead, focused all of her attention on the male, who was

being detained by Seward and Jourdin approximately five feet

away. Although Smith made several attempts to draw defendant's

attention and engage her in conversation, she remained

nonresponsive and attempted to walk towards the male. 

According to Smith, after questioning defendant for about

30 seconds to a minute without receiving any response, he decided

to detain and handcuff defendant "to gain [her] full attention

and to actually have [defendant and the male] separated." Smith

then grabbed defendant's arm and stated, "ma'am, I'm going to

detain you. I want to put you in handcuffs. It is for your

safety, it's for our safety until we can figure out what's

happening. You are not responding to me but I'm going to put

handcuffs on you." Defendant complied and placed her hands

behind her back and then proceeded to tell Smith about a back

injury she had, that "she didn't need to be detained or

handcuffed" and that she "didn't do anything." Smith responded,

"You are going to be detained until I can figure out what's

happening here." As Smith was attempting to place the handcuffs

on defendant, she tried to pull away from him. Defendant was

later forced to the ground,1 where she began swinging her arms

1 Defendant testified at trial to a completely different

version of her altercation with Smith, alleging that Smith –

immediately upon approaching her and without questioning her –

grabbed her arm and forced her to the ground, even though she
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and kicking her legs at Smith. Two other police officers later

arrived to assist Smith in controlling defendant. During the

altercation, Smith and one of the assisting officers each

sustained an injury to a knee, and Smith also suffered a facial

laceration.2

Defendant was indicted and charged with two counts of

assault in the second degree. Following a jury trial, she was

convicted of the count regarding her altercation with Smith, but

acquitted of the count involving the assisting officer. 

Sentenced to two years in prison, to be followed by three years

of postrelease supervision, defendant appeals.

Defendant contends that the verdict was not supported by

legally sufficient evidence, claiming that the People failed to

prove that Smith was performing a lawful duty at the time when

defendant assaulted him. While defendant's challenge to the

legal sufficiency of the evidence is not preserved for our review

due to her failure to advance it specifically in her motion to

dismiss (see People v Powell, 128 AD3d 1174, 1175 [2015]; People

v Andrews, 127 AD3d 1417, 1419 [2015], lv denied 25 NY3d 1159

[2015]), upon our review of the record, we nevertheless exercise

our interest of justice jurisdiction and reverse defendant's

conviction (see CPL 470.15 [6]; 470.20 [2]; People v Hemingway,

85 AD3d 1299, 1301 n 2 [2011]; People v Caulkins, 82 AD3d 1506,

told Smith that she was the person who called 911. 

2 At trial, Smith provided inconsistent testimony regarding

when and how he sustained the facial laceration. At one point,

Smith testified that, when he lost his grip of defendant as he

was attempting to place handcuffs on her, defendant immediately

turned around and struck him across his face. Later, when

confronted with a report that he participated in drafting

pertaining to this incident, Smith conceded that defendant did

not strike his face as he was attempting to handcuff her while

they were standing. Instead, he testified that he sustained the

facial laceration at a later time when defendant was lying on the

ground – without specifying whether the injury was caused by

defendant. 
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1507 [2011]; People v Bruno, 63 AD3d 1297, 1299 [2009], lv denied

13 NY3d 858 [2009]).

"'[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'" (People v Nisselbeck, 85 AD3d

1206, 1207 [2011], quoting Penal Law § 120.05 [3]; accord People

v McLean, 128 AD3d 1106, 1107 [2015], lv denied 25 NY3d 1204

[2015]; see People v Somerville, 72 AD3d 1285, 1287 [2010]). "To

sustain a conviction of assault in the second degree under Penal

Law § 120.05 (3), the People must establish that the injured

police officer was engaged in a lawful duty at the time of the

assault by the defendant" (People v Lindsey, 52 AD3d 527, 529

[2008] [internal quotation marks and citations omitted], lv

denied 11 NY3d 738 [2008]; see People v Cofield, 131 AD3d 539,

540 [2015], lv denied 26 NY3d 1038 [2015]; People v Hurdle, 106

AD3d 1100, 1103 [2013], lvs denied 22 NY3d 956, 996 [2013]). 

Here, Smith's conduct in physically restraining defendant

and attempting to place handcuffs on her constituted, at least, a

forcible detention, which required Smith to have a reasonable

suspicion that defendant had committed, was committing or was

about to commit a crime (see People v Moore, 6 NY3d 496, 498-499

[2006]; People v De Bour, 40 NY2d 210, 223 [1976]; People v

Morris, 138 AD3d 1239, 1240 [2016]; People v Stroman, 107 AD3d

1023, 1024 [2013], lv denied 21 NY3d 1046 [2013]). However,

Smith's own testimony reveals that at no time before he attempted

to handcuff defendant did he observe her engage in any criminal

activity or any suspicious conduct that could have given rise to

a reasonable suspicion that she had committed or was about to

commit a crime (see People v Cantor, 36 NY2d 106, 113 [1975];

People v Coronado, 139 AD3d 452, 452-453 [2016]; People v Hurdle,

106 AD3d at 1104). Instead, Smith testified that he saw tears on

defendant's face and was told by defendant that she did not do

anything and did not need to be detained, and that he decided to

detain her because she failed to respond to his questions. While

Smith certainly acted appropriately in questioning defendant

concerning the 911 call he was responding to (see People v Nonni,

135 AD3d 52, 55 [2015]; see generally People v Moore, 6 NY3d at

498), and may well have been frustrated by her lack of
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cooperation, defendant had a constitutional right not to respond

to police inquiry (see People v Moore, 6 NY3d at 500-501; People

v May, 81 NY2d 725, 727-728 [1992]; People v Howard, 50 NY2d 583,

592 [1980], cert denied 449 US 1023 [1980]; People v Hightower,

136 AD3d 1396, 1397 [2016]; People v McCullough, 31 AD3d 812, 813

[2006], lv denied 7 NY3d 850 [2006]). Thus, defendant's failure

to answer Smith's questions, in and of itself, was insufficient

to provide Smith with the requisite reasonable suspicion of

criminal activity (see People v Moore, 6 NY3d at 500-501; People

v May, 81 NY2d at 727-728; People v Hightower, 136 AD3d at 1397;

People v McCullough, 31 AD3d at 813). 

Smith further testified that, apart from defendant's

failure to respond, defendant attempted, on more than one

occasion, to walk around him and move towards the male, who was

behaving aggressively at that time. Such conduct does not,

however, support a reasonable suspicion that defendant was

threatening the police officers' safety or attempting to

interfere with the male's arrest. To that end, the testimony

established that the male had already been handcuffed and

detained by two other officers before Smith even started

questioning defendant, who was docile until she resisted his

attempts to handcuff her. Moreover, the record is bereft of

testimony indicating that any of the officers felt threatened or

endangered by defendant's behavior.

Viewing the evidence in the light most favorable to the

People (see People v Reed, 22 NY3d 530, 534 [2014]; People v

Contes, 60 NY2d 620, 621 [1983]), we find no valid line of

reasoning and permissible inferences from which a rational jury

could have concluded that Smith possessed the requisite

reasonable suspicion of criminality necessary to forcibly detain

defendant. As defendant's subsequent conduct in assaulting Smith

"cannot validate an encounter that was not justified at its

inception" (People v Moore, 6 NY3d at 498; accord People v AbdulMateen, 126 AD3d 986, 988 [2015]; People v Hurdle, 106 AD3d at

1104), the evidence was legally insufficient to establish that

Smith was injured while undertaking a lawful duty, and

defendant's conviction must be reversed (see People v Hurdle, 106

AD3d at 1103-1104; People v Everett, 82 AD3d 1666, 1666-1667

[2011]; compare People v Sawyer, 270 AD2d 293, 294 [2000], lv
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denied 95 NY2d 803 [2000]). Defendant's remaining contentions

are rendered academic.

Garry, Rose, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is reversed, as a matter of

discretion in the interest of justice, and indictment dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court