New trial ordered in assault case

Court: Jurors should have had a lesser-charge option for woman accused of kicking cop

By ROBERT GAVIN Staff writer

ALBANY — A woman convicted of kicking an Albany police officer in the groin has won the right to a new trial.

Danielle Nisselbeck, 28, has been serving a four-year prison term for felony assault at Albion Correctional Facility in Orleans County. An Albany County jury found her guilty on May 21, 2009, of assaulting Officer Gregory Mulligan outside Oh Bar on Lark Street on Feb. 1, 2009.

Her attorney, Matthew Hug, successfully argued Judge Thomas Breslin should have let jurors consider the lesser-included charge of second-degree obstruction of governmental administration to second-degree assault. Nisselbeck was convicted of both crimes, but jurors were not given the option to consider the obstruction charge instead of felony assault — just in addition to it.

In a 5-0 ruling, the Appellate Division of state Supreme Court decided it was grounds to reverse Nisselbeck’s conviction.

“We conclude that there is a reasonable view of the evidence to support a finding that defendant committed the lesser but not the greater offense,” the decision stated Thursday. “The relevant distinction between the two offenses turns on whether defendant caused Mulligan physical injury … a question presenting an issue of fact for the jury to decide.”

Mulligan testified the assault was similar to someone “kicking a football.” The decision, which did not dispute the severity of his injury, rejected Hug’s claim that Nisselbeck was convicted against the weight of the evidence.

But the ruling noted Mulligan went to another call after the incident and indicated his pain had subsided by the time he left the hospital and that his discomfort “was vague” over the next few days.

“Under these circumstances,” the ruling stated, “the jury could have found that Mulligan did not sustain a physical injury and, thus, defendant was entitled to the requested charge down.”

On Jan. 31, 2009, Nisselbeck, her brothers Justin and Jakeb Nisselbeck, and James Hoffman went out on Lark Street to celebrate her 26th birthday.

At some point in the night, words were exchanged between Nisselbeck’s group and two brothers, one of whom fought Jakeb Nisselbeck.

City police did not initially make any arrests. But when they returned about 3 a.m., the situation became chaotic.

The appellate decision described the events as follows:

Police asked both groups to go home. Hoffman, who became belligerent, placed his hands on Officer Thomas Mahar. In turn, Mahar told Hoffman he was under arrest. Danielle Nisselbeck, allegedly trying to stop the arrest, pushed Mahar. Officer William Norris pushed her to the side. Justin Nisselbeck left a bar and asked the police what was happening.

At some point, Jakeb Nisselbeck tried to tackle Mahar. His sister allegedly scratched Norris’ face. After more punches were thrown, police subdued Hoffman and the Nisselbeck brothers. When Mulligan approached Danielle Nisselbeck to arrest her, she flailed and kicked him in the groin. Mulligan allegedly punched her, she went to the ground and the group was arrested.

During the incident, police alleged Justin Nisselbeck punched Norris in the face after the officer pushed his sister off Mahar; Justin Nisselbeck, who is gay, alleged Norris made a homosexual slur at him and punched him in the face. Justin Nisselbeck, who was tried at the same time as his sister, was acquitted of second-degree assault.

Danielle Nisselbeck was cleared of scratching Norris but convicted of assaulting Mulligan.

The woman, who has a prior conviction for DWI, told Breslin during her sentencing she has alcohol dependency issues. And she apologized to Mulligan.

Both Justin and Danielle Nisselbeck rejected plea deals before the trial that would have carried no more than six months in the Albany County jail.

Danielle Nisselbeck ended up with the four-year sentence and two years’ post-release supervision. Her brother, while acquitted, was later sentenced to six months in jail for an unrelated felony DWI conviction.

Reach Robert Gavin at 434-2403 or rgavin@timesunion.com

Source: http://www.timesunion.com/local/article/New-trial-ordered-in-assault-case-1409818.php#ixzz1PqJL0Ce8