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.
-4- 105007 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court