Decision and Order1 After a bench trial, suspended Rochester Police Department Officer Michael Sippel was convicted of Assault in the Third Degree.2 The charge against Michael Sippel arose as a result of a police/citizen street encounter on May 5, 2018, and over the past sixteen months the body worn camera footage in this case has been the subject of much community discussion and media attention. Following the trial, counsel for the defendant filed the present motion to set aside the verdict under CPL §330.30(1). The People filed opposition papers and the Court has heard oral argument. For the reasons which follow, the defendant’s motion is denied in all respects. Parameters for Consideration of this CPL Article 330 Motion During the period between a guilty verdict and sentencing, a court may consider a motion to “set aside or modify the verdict or any part thereof upon…[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.”3 However, [t]he power granted a Trial Judge is…far more limited than that of an intermediate appellate court, which is authorized to determine not only questions of law but issues of fact, to reverse or modify a judgment when the verdict is against the weight of the evidence, and to reverse as a matter of discretion in the interest of justice. Although the interest of justice power permits an intermediate appellate court to vacate a conviction as to which reversal is not warranted on the law or the facts when there is a grave risk that an innocent man has been convicted, Trial Judges have no such power. Nor are they authorized to set aside a verdict as against the weight of the evidence.4 Accordingly, while neither the weight of the evidence presented at trial nor relief in the interest of justice are material to such an application, it is essential in the majority of circumstances that an objection to the purported error be voiced promptly preserving the issue for appellate purposes. Thus, “in order to preserve a claim of error in the admission of evidence or a charge to the jury, a defendant must make his or her position known to the court.”5 Three justifications for the preservation requirement have been recognized by our highest court. First, [a] sufficiently specific motion might provide the opportunity for cure before a verdict is reached and a cure is no longer possible. Second, a timely objection alerts all parties to alleged deficiencies in the evidence and advances the truth-seeking purpose of the trial. Third, the timely objection advances the goal of swift and final determinations of the guilt or non-guilt of a defendant.6 Failure to object and articulate specific grounds for relief is fatal in all but very select situations.7 In this case, the majority of the claims made by defendant’s present counsel must fail because no objection was raised at trial. In addition, all of the facts regarding the issues raised by defendant’s present counsel are found in the trial record and allegedly occurred during the proceedings in the presence of the court, the prosecutor, the defendant’s trial attorney and the defendant. As counsel for the defendant has included a full transcript of the trial in support of his position, there is no need for a hearing on the issues raised.8 This Defendant’s CPL §330.30(1) Motion During oral argument, the court questioned counsel regarding the legal basis for his motion as the preliminary statement in his memorandum of law asserted the “Court’s verdict [was] not supported by legally sufficient evidence.” Since a trial court cannot vacate a verdict based on alleged insufficiency of the evidence, the court suggested to counsel there might possibly be one narrow avenue leading to the relief requested: a challenge to the court’s legal decision denying trial orders of dismissal. The court assumes that is why in the memorandum counsel argued that “even viewing the evidence in a light most favorable to the People,” Officer Sippel’s actions were justified. Yet, the next six pages of the memorandum’s “Statement of Facts” more closely resembles a summation focusing on testimony and evidence which counsel posited should be accepted as true. At trial, however, counsel’s alleged “facts” were contested by the People. Furthermore, the court finds some “facts” have little or no support in the record. Evaluating the most critical seconds during this brief incident illustrates this point in high relief. At several points during body worn camera footage and on the witness stand at trial there was evidence that Christopher Pate showed Officer McAvoy a photo ID which was not in the name of the felon being sought for a violent felony. The “facts” in the memorandum correctly note that after showing photo ID to Officer McAvoy “Mr. Pate continued to walk away.” That sentence then fast forwards to the point where both officers went around the corner onto Fulton Avenue. Such syntax, however, does not address what a fact finder might believe is a critical question: what happened between Mr. Pate and the officers before they turned the corner? If believed by the judge, the body worn camera footage might show Officers McAvoy and Sippel heading back to their police car with backs turned to Mr. Pate as he continued to walk down the sidewalk toward Fulton. It could show Officer McAvoy taking off the leather gloves he testified he wears when he believes he may soon have physical contact with an individual. It could illustrate Officer Sipple with his hand at his waist in an area where he carried the fob used to lock and unlock the undercover police car. If the fact finder were to find that video believable, it shows Mr. Pate was walking down the street and had not reached the corner during that period. In addition, that same footage may depict Mr. Pate questioning the officer’s authority to stop him earlier in the following exchange as the officers continued to walk to their car: Christopher Pate: “You have no right…” Officer McAvoy: “You could a just pulled that out…” Christopher Pate: “You have no right…” Officer McAvoy: “Yes, I do…” Christopher Pate: “You have no right…” Officer McAvoy: “Alright, fine…” After that argument, if credited by the fact finder, the body worn camera footage may show Officer Sipple turning to his left and following Christopher Pate toward the street corner repeatedly demanding that Pate show him ID. During deliberation, the fact finder could have found that a common sense view of the testimony might question why two experienced officers would turn their backs on Christopher Pate and allow him to continue on his way down the street if they still believed he was a wanted violent felon.9 A fact finder might reasonably infer that Officer Sippel went after Mr. Pate demanding to be shown identification only after a verbal disagreement between Mr. Pate and his partner, Officer McAvoy. Contrary to the “facts” alleged in defense counsel’s memorandum, a fact finder might determine that there was no legal law enforcement rationale justifying Officer Sipple’s pursuit of Christopher Pate.10 In the final analysis resolution of these and other disputed questions of fact was the bench trial judge’s responsibility.11 Denial of the defendant’s motions for trial orders of dismissal were not legal errors which would “require reversal on appeal.” During any trial its just testimony, its only evidence. Nothing becomes a “fact” until a jury or a judge during deliberation finds any of the testimony or evidence to be believable! The last basis for relief involves not only similar factual issues12 but also purported legal errors which were not challenged at trial. Any alleged errors regarding the court’s charge, therefore, are un-preserved and would not “require reversal” on appeal. As the court noted during trial and on argument of this motion, the charge in this case was crafted by this court as there is no applicable criminal pattern jury instruction relating to authorization for and justification of an officer’s use of force in situations such as the one presented here. This court’s charge was drawn from both state and federal cases involving police/citizen encounters.13 As noted long ago by the Court of Appeals, “convictions are not to be set aside because, on reflection in tranquility, better charges could have been composed.”14 In this case, the court repeatedly requested that both the prosecutor and defense counsel submit written requests to charge on the substantive law applicable to the allegations in this case. In addition, the court provided drafts of the proposed charge for their consideration. Given the lack of objection to the courts charge and the efforts undertaken by the court to seek counsel’s suggestions, it is difficult to find at this point that reversal by an appellate court would be “required”. Conclusion Regardless of the communities in which they occur, most interactions between members of law enforcement and the community are not problematic. In a very small but significant number of cases, however, street encounters between police officers and citizens serve as a reminder that when we act in haste, we often repent in leisure. Regardless of whether the situation involves a citizen who is accused of resisting arrest or an officer alleged to have used excessive force the allegations often end up in court where judges or juries are asked to sort things out. At that point, “the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.”15 Once a judge or jury finds the facts then the appropriate law is applied and the chips fall where they may. That is exactly what happened here. This case was tried by skilled attorneys over a period of several days and culminated in this court’s careful consideration of the issues presented. While the defendant and others may disagree with the court’s finding, there is no statutory basis to set aside the verdict. Accordingly, after due deliberation and careful consideration, it is hereby HELD that the Defendant has failed to identify “[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court “. And it is further HELD that this court has considered each and every request and ground for relief set forth in the defendant’s motion papers and denies each and every one.16 It is therefore ORDERED that the motion to set aside the verdict in this case is denied. The foregoing constitutes the decision and order of the court. Dated: September 25, 2019 Rochester, New York Appendix “With respect to the charge of Assault in the Third Degree, Officer Sippel has raised the defense of justification. However, he is not required to prove that he was justified. The People are required to prove beyond a reasonable doubt that Officer Sipple’s actions were not justified under our law. In New York, a police officer may use physical force upon another individual when, and to the extent that, such conduct is authorized by law, or is performed by a public servant in the reasonable exercise of that person’s official powers, duties or functions. Under our law a police officer in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent the officer reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody. Moreover, in New York a person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer when it would reasonably appear that the latter is a police officer. Under our law, as it may apply in this case, a person who has committed or is believed to have committed an offense and who is at liberty may be arrested for such offense although no warrant of arrest has been issued and although no criminal action therefore has yet been commenced in any criminal court. An officer may arrest a person for any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence. In addition, a police officer may arrest a person for a crime when she or he has reasonable cause to believe that such person has committed such crime whether in the officer’s presence or otherwise. Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Such apparently reliable evidence may include or consist of hearsay. Accordingly, it may be derived in part in accordance with what is referred to as “the fellow officer rule.” That legally recognized concept allows a police officer to make a lawful arrest even without having personal knowledge sufficient to establish probable cause, so long as the officer is acting at the direction of or as a result of communication with or from a fellow officer or member of the arresting officer’s police department, or another police agency in possession of information sufficient to constitute probable cause for the arrest. This matter involves a street encounter between police officers and a citizen. It is asserted that the interaction was based in part on the contents of review of a “wanted board” seen by Officer McAvoy and an e-mail of individuals wanted by Lake Section Officers attached to an email received by Officer McAvoy regarding a Burglary suspect named Barrett who officer McAvoy had previously arrested on another charge. While he was a passenger in an unmarked police vehicle driven by Officer Sipple, Officer McAvoy observed a person he believed to be Mr. Barrett. It was later learned he was mistaken and the pedestrian was actually Christopher Pate. Thus, part of my factual focus will be on what information Officer McAvoy gleened from his interactions from Mr. Pate while on Bloss Street as well as when he acquired any information he possessed during that period. I must also consider certain special rules when it is alleged a police officer used force while on duty. In this case. Officer Sippel’s actions must have been authorized by law, or performed in the reasonable exercise of his official powers, duties or functions. Thus, the fact finder needs to consider the circumstances of this case as they relate not only to the authority, if any, for Officer Sippel to take any action I find he took, but also whether his actions were exercised reasonably in this situation. In this regard, the first question to be answered is whether or not Officer Sippel’s actions involving Christopher Pate were justified at their inception based on the information then available to him at he time he acted. In that regard, I may consider any direct or circumstantial testimony or evidence regarding what if anything Officer Sippel was able to observe or hear in connection with any interaction between Officer McAvoy and Christopher Pate. New York has adopted a graduated four-level test for evaluating street encounters initiated by the police for you to use when assessing whether Officer Sippel was authorized to act as he did. This sliding scale is fluid, defined by the circumstances justifying escalation and/or de-escalation: First, an officer may approach an individual on the sidewalk to request information from an individual for any objective, credible reason not necessarily indicative of criminality. At the next level, the common law right of inquiry, permits a somewhat greater intrusion and requires that the officer have a founded suspicion that criminal activity is afoot. An officer may not forcibly stop or detain a citizen when undertaking a request for information or common law right of inquiry. In such situations, an officer is authorized to ask a citizen questions and to follow him or her while attempting to engage that person, but the officer may not seize the person in order to do so. In order to be authorized to forcibly stop someone from not answering questions and just walking away, at the third level the officer must have additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of recent, contemporaneous or imminent criminal behavior. The suspicion that criminal activity is afoot must exist at the moment of the police intrusion and cannot consist of mere hunches or gut reactions. Innocuous behavior alone will not generate either a founded or a reasonable suspicion that a crime is at hand sufficient to prevent someone from just walking away. The final level requires probable cause to believe that the person who the police encounter has actually committed a crime or an offense. This requires that the officer have evidence or information which appears reliable and discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a police officer of ordinary intelligence, judgment and experience that it is reasonably likely that such an offense was committed and also reasonably likely that the person being arrested committed it. When making an arrest based upon probable cause, the arresting officer must inform such person of the officer’s authority and purpose and of the reason for such arrest unless the officer encounters physical resistence, flight or other factors rendering such procedure impracticable. If I determine beyond a reasonable doubt that based on what Officer Sippel knew and/or observed on May 5th, the initial physical contact by Officer Sippel was not authorized, then his action in touching Christopher Pate’s arm to get him to stop walking away was not justified. Accordingly, if the People have proven beyond a reasonable doubt Officer Sippel’s lack of legal authorization for his initial physical contact with Christopher Pate, then he may not avail himself of the defense of justification. If I find his initial physical contact was authorized, I must then proceed to the second requirement that the actions taken by Officer Sippel were reasonably related in scope to the circumstances which justified the interference in the first place. This test of reasonableness is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Accordingly, if I should find that Officer Sippel used force against Christopher Pate, I will then employ an objective test requiring a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. I will consider whether the force used by Officer Sippel was reasonable or whether it was greater than the force which would have been reasonably necessary to an ordinary and reasonable officer if he or she was presented with the circumstances Officer Sippel believed them to be. Under our law the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. In this case, the People are required to prove beyond a reasonable doubt that Officer Sippel was not justified. It is thus an element of Assault in the Third Degree that the defendant was not justified. As a result, if I find that the People have failed to prove beyond a reasonable doubt that Officer Sippel was not justified, then I must find him not guilty of Assault in the Third Degree. Under our law, a person is guilty of Assault in the Third Degree when, with intent to cause physical injury to another person, he or she causes such injury to that person. Some of these terms have a special meaning under the Penal Law. Physical injury means impairment of physical condition or substantial pain. Intent means conscious objective or purpose. Thus, a person acts with intent to cause physical injury to another when that person’s conscious objective or purpose is to cause physical injury to another. Causation does not require that a defendant’s conduct be the sole cause of the injuries. Causation has been shown if an individual’s actions were a sufficiently direct cause of the ensuing injuries. An act qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen by the defendant. In order for me to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case, beyond a reasonable doubt, each of the following three elements: 1.That the defendant, Officer Sipple was not justified under the law in regard to his interactions with Christopher Pate on or about May 5, 2018; and 2.That on or about that date in the City of Rochester, the defendant, Officer Michael Sippel, caused physical injury to Christopher Pate; and 3. That the defendant did so with intent to cause physical injury to Christopher Pate. Therefore, if I find that the People have proven beyond a reasonable doubt each of those elements, I must find the defendant guilty of the crime of Assault in the Third Degree. On the other hand, if I find that the People have not proven beyond a reasonable doubt any one or more of those elements, I must find the defendant not guilty of the crime of Assault in the Third Degree.”
