From Casetext: Smarter Legal Research

People v. Hollis

Appellate Division of the Supreme Court of New York, First Department
Dec 3, 1998
256 A.D.2d 59 (N.Y. App. Div. 1998)

Opinion

December 3, 1998

Appeal from the Supreme Court, New York County (Howard Bell, J.).


Defendant's guilt was proven beyond a reasonable doubt by legally sufficient evidence, and upon an independent review of the facts, we find that the verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490). The issues raised by defendant regarding discrepancies between the testimony of the officers who testified for the prosecution were properly placed before the jury, and we find no reason to disturb its determination. Defendant failed to preserve his claim that the officer he assaulted was not performing a lawful duty when injured, a necessary element of Penal Law § 120.05 (3) and we decline to review it in the interest of justice. Were we to review the claim, we would reject it. Even assuming, arguendo, that the officer was not following police guidelines, such guidelines do not have the force of law.

The court properly charged accessorial liability over defendant's objection. Defendant received fair notice of the People's intention to proceed on a theory of accessorial liability, and a defendant may be properly convicted as an accomplice where the indictment accuses him only as a principal (People v. Rivera, 84 N.Y.2d 766).

The prosecutor's conversation with a discharged juror prior to summation was not misconduct (see, Code of Professional Responsibility DR 7-108 [D] [ 22 NYCRR 1200.39 (d)]) and did not require further inquiry. Since the jurors are presumed to have followed the court's instructions not to discuss the case, there is no indication that the prosecutor could have acquired any knowledge of the remaining jurors' attitudes toward the case. In any event, since defense counsel learned of the substance of this conversation before summations, the prosecutor could not have gained any unfair advantage.

Concur — Rosenberger, J. P., Wallach, Rubin and Saxe, JJ.


Summaries of

People v. Hollis

Appellate Division of the Supreme Court of New York, First Department
Dec 3, 1998
256 A.D.2d 59 (N.Y. App. Div. 1998)
Case details for

People v. Hollis

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY HOLLIS…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 3, 1998

Citations

256 A.D.2d 59 (N.Y. App. Div. 1998)
682 N.Y.S.2d 141

Citing Cases

People v. McNear [4th Dept 1999

In any event, that contention lacks merit. Nothing in the record indicates that the jury failed to follow the…