There’s little doubt that Danielle Nisselbeck caused an Albany police officer a good deal of pain when she booted him in the groin.
After all, Officer Gregory Mulligan described her motion as if someone were “kicking a football for a field goal,” according to court documents. He sought medical attention, was diagnosed with a “scrotal contusion,” and suffered enough pain to make walking uncomfortable for several days, he indicated during Nisselbeck’s trial in May 2009.
But did it cause Mulligan enough pain that it left him physically injured? Not according to the justices of the state Supreme Court’s Appellate Division, who overturned Nisselbeck’s conviction on a second-degree assault charge Thursday and ordered a new trial.
In granting Nisselbeck a new trial, the justices found that she more likely committed the lesser offense of obstructing governmental administration than the second-degree assault that landed her a stint in state prison. In their unanimous ruling the justices also noted that Mulligan, despite his discomfort, continued to work on the evening he was kicked and “that his discomfort over the next several days was vague.”
“Under these circumstances, the jury could have found that Mulligan did not sustain a physical injury and, thus, [Nisselbeck] was entitled to the requested charge down,” Justice Thomas Mercure wrote in the decision.
Nisselbeck, 28, was part of a fracas that broke out between her two brothers, a friend and several Albany Police officers outside Oh Bar on Lark Street in February 2009. The group had been celebrating Nisselbeck’s birthday before becoming disruptive in a bar and drawing the attention of police.
Police were trying to subdue the brothers and arrest their friend, James Hoffman, when Nisselbeck pushed one of the officers. The officer pushed her back, prompting Justin Nisselbeck to confront him. After a brief fight, all three men were brought under control and Mulligan attempted to arrest Nisselbeck. She responded by kicking him in the groin, according to court documents.
Following a joint trial, Justin Nisselbeck was acquitted of assaulting a police officer. But his sister was found guilty of second-degree assault and obstruction of governmental administration.
Nisselbeck was sentenced to a conditional discharge on the obstructing count, but up to four years in prison on the assault conviction. She’s been incarcerated since August 2009 and is up for conditional release in October 2012, according to the state Department of Correctional Services.
“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,” Mercure wrote.