| People v Ochoa |
| 2008 NY Slip Op 09912 [57 AD3d 342] |
| December 18, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v MarkOchoa, Appellant. |
—[*1] Mark Ochoa, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered January 20,2006, convicting defendant, after a jury trial, of robbery in the second degree, and sentencinghim, as a second felony offender, to a term of 10 years (plus five years of postreleasesupervision), affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). Defendant failed to preserve the sufficiency issue, and wedecline to review it in the interest of justice. Alternatively, we find that when viewed in the lightmost favorable to the People, the evidence permitted a "valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury" (People vBleakley, 69 NY2d 490, 495 [1987]; see also Danielson, 9 NY3d at 349). Robbery inthe second degree, on the theory that defendant forcibly stole property with the aid of anotherperson actually present, was supported by unrefuted testimony that the codefendant inexplicablyapologized to complainant Ruballo shortly before the crime, raising the inference that he knewwhat was about to happen; that complainant Cruz observed defendant and his codefendanttalking quietly immediately before the codefendant began wresting the property from Cruz anddefendant's restraint of Ruballo as soon as she responded to the clamor; that Cruz was certain thatdefendant, the only other person present at the time, facilitated the robbery by pulling Cruz'sjacket over his head from behind as he and the codefendant struggled; and that both assailantsfled together after the codefendant beat and kicked Cruz to gain control of the property andwounded Cruz with a box cutter or razor dispenser provided by defendant.
Similarly, the weight of the credible evidence supported the verdict (see Danielson, 9NY3d 342, 348 [2007]). Since acquittal would not have been unreasonable here, we must weighthe conflicting testimony, review any rational inferences that may be drawn from the evidence,evaluate the strength of such conclusions, and based upon the weight of the credible evidence,decide whether the jury was justified in finding the defendant guilty beyond a reasonable doubt.[*2]The principal evidentiary issues raised by defendant onappeal are the inconsistencies in Cruz's and Ruballo's various pretrial accounts of the robbery andthe purportedly weak, conflicting evidence that defendant played any role in the robbery. In theirtrial testimony, both witnesses explained the inconsistencies as an attempt to conceal the fact thatthe site of the robbery (Ruballo's apartment) was essentially a "crack house" and admitted theirdrug histories; Cruz also professed to being "confused" by the questions. We, like the jury, findthis explanation, as well as the testimony cited above, credible, and also find that the evidenceleads to the rational and plausible conclusion, beyond a reasonable doubt, that defendant actedwith the codefendant in committing the crime.
We find lacking in merit the assertion that the prosecutor improperly used Cruz's andRuballo's prior consistent statements to buttress their testimony, and in any event, that any errorwas harmless under the circumstances. As noted, Cruz and Ruballo admitted in the course oftheir trial testimony its inconsistency with their pretrial accounts of the robbery, and explainedtheir earlier fabrications, which essentially altered the time of day and the location within thebuilding where the robbery occurred. However, those fabrications were collateral to the coreallegations of their testimony supporting the robbery charge—namely, that inside thebuilding at the address and on the date specified, the codefendant forcibly stole Cruz's videogame console by beating and cutting him, aided by defendant who was actuallypresent—from which they never deviated. The cross-examinations of Cruz and Ruballorefuted the fabrications, but never refuted the core allegations. Moreover, the tenor of theprosecutor's redirect was not necessarily the rehabilitation of the two witnesses or the bolsteringof their testimony. These efforts were directed at leaving the jury with the unrefuted coreallegations supporting the charges by readily conceding Cruz's and Ruballo's liabilities andfabrications, and offering a plausible explanation for the latter. Specifically, on redirect, theprosecutor did not attempt to correct Cruz's false allegations to the grand jury, but sought to showthat there were matters he was not "confused" about, which were consistent with his directtestimony. As to Ruballo, the prosecutor did not use her prior statement to the police to establishthat she told the complete truth on direct about the circumstances surrounding the crime; rather,she asked Ruballo to reiterate the portions of her statement that were true and untrue (hardlydifferent from defense counsel's cross-examination of Ruballo). The portion she confirmed astrue was the basic information provided in the statement and on direct—e.g., her name, thedefendants' names, the address of the building, and the location in the building where the incidentoccurred.
The trial court correctly found, after conducting a CPL 330.30 hearing, that defendant'scontention that he was deprived of his right to be present at a material stage of the proceedingslacked merit, in addition to being waived as unpreserved. The jury foreperson's note was properlyfound to address a ministerial matter—the procedure to be followed in announcing theverdict—rather than a substantive one (People v Collins, 99 NY2d 14, 17-19[2002]; People v Bonaparte, 78 NY2d 26, 30-31 [1991]), and defense counsel's failure tomake the requisite objection or otherwise seek relief from the court's ruling in a timely mannerwaived such claim (see People vCampbell, 48 AD3d 204, 205 [2008], lv denied 10 NY3d 860 [2008]).
Defendant's pro se contention that he was afforded ineffective assistance of counsel cannotbe adequately reviewed upon the record submitted. By failing to seek CPL 440.10 (1) (a) relief,he failed to present a record of counsel's explanation for his trial tactics (see People v Holman, 14 AD3d443 [2005], lv denied 4 NY3d 887 [2005]). To the extent we can review this [*3]claim based upon the record submitted, we find that counsel didprovide meaningful representation at trial, as evidenced by defendant's acquittal of the mostserious charges submitted to the jury, as well as the effective cross-examination of thecomplainants.
We have reviewed the balance of defendant's argument and find it without merit.Concur—Mazzarelli, J.P., Friedman, Nardelli and Williams, JJ.
Freedman, J., dissents in a memorandum as follows: I respectfully dissent, because I believethe trial court committed reversible error by allowing the prosecutor to bolster the testimony ofRuballo and Cruz, the two main witnesses against defendant, by introducing their prior consistentstatements.
The jury's verdict, which convicted defendant of robbery in the second degree for robbingCruz of his "Xbox" video game console and money in Ruballo's presence, by acting in concertwith codefendant Nicholas Figueroa,[FN1]was based on the testimony by Ruballo and Cruz, who were the only witnesses to the incident.As defense counsel pointed out during cross-examination at trial, portions of Cruz's andRuballo's testimony were internally inconsistent, or conflicted with each other's trial testimony,testimony at an earlier suppression hearing, or their own prior statements to the policeinvestigating the incident or to the grand jury. For example, Cruz testified at trial that the robberyoccurred both at about 8:00 a.m. and at 2:30 p.m. He also gave inconsistent accounts of whetherdefendants were waiting in the apartment where the incident commenced when Cruz and Ruballoarrived, or whether they were standing on the stoop in front of the apartment building andfollowed them into the apartment. He first testified at trial that defendant joined Figueroa inkicking him during the robbery, but later indicated that only Figueroa kicked him, and at varioustimes stated that defendant and Figueroa had stolen $50 and $200 from him. Cruz also madeinconsistent statements about what weapons defendant and Figueroa carried, the extent ofdefendant's involvement, and whether Cruz knew or had any relationship with the robbers.
Ruballo also made a number of inconsistent statements as to the sequence of events duringthe robbery, her relationship with defendant and Figueroa, and whether she had seen them takeany money from Cruz.
On redirect examination of Cruz, the prosecutor questioned Cruz about prior statements hehad made that conformed to his trial testimony, asking him whether those prior statements werecorrect. Defense counsel objected, stating that the prosecutor was not permitted to ask about priorconsistent statements, but the objection was overruled.
On redirect examination of Ruballo, the prosecutor proposed to "go through" Ruballo'swritten statement to the police "to clarify what's incorrect and what is correct." Defense counselobjected, stating, "The district attorney can not rehabilitate a witness with a prior inconsistentstatement by picking out prior consistencies unless I claim recent fabrication on the witnessstand. I'm not doing that." The court overruled the defense objection, noting that the "District[*4]Attorney is simply trying to ascertain which part of thestatement is truthful and which part was not as already testified by this witness." The prosecutorthen led Ruballo through several assertions in the statement, asking whether they were correct orincorrect. Counsel objected on the basis that "prior consistencies on an inconsistent statement areinadmissible," but the objection was overruled.
The prior statements constituted improper bolstering and should not have been admitted.Generally, a party may not rehabilitate a witness's testimony by showing that the witnesspreviously made statements to the same effect (People v McDaniel, 81 NY2d 10, 16[1993]; People v McClean, 69 NY2d 426, 428 [1987]; People v Harris, 242AD2d 866 [1997], lv denied 91 NY2d 892 [1998]). However, after a witness's testimonyis directly or inferentially assailed as a recent fabrication, the witness may be rehabilitated withprior consistent statements that predated the motive to falsify (McDaniel, 81 NY2d at 18;McClean, 69 NY2d at 428). In applying the exception, "it is important to identify whenthe motive to fabricate arose," and where "the motive may exist from the outset, . . .rehabilitation with consistent statements may be impossible" (McDaniel, 81 NY2d at 18).
While defendant's counsel did, in fact, confront Cruz with his prior inconsistent statements,he never suggested that Cruz had recently fabricated his account of the robbery. To the contrary,defendant's position was that Cruz had lied from the time he first made statements to the police.The People's argument that the prosecutor merely gave Cruz an opportunity to "clarify what hewas not confused about when he testified before the Grand Jury" is unavailing. The Peoplecannot circumvent the rule against bolstering by characterizing the reexamination as a showingthat Cruz was confused about some of his statements, but not all of them.
The prior consistent statements brought out on Ruballo's redirect were even moreproblematic, since the prosecutor went through Ruballo's written statement to the police whilecharacterizing certain allegations as false, and thereby implied that the remaining statements weretrue.
The prosecution's bolstering cannot be excused as harmless error. The evidence againstdefendant was not overwhelming[FN2]and depended entirely on Cruz's and Ruballo's testimony. Cruz's and Ruballo's credibility aswitnesses is at issue because they (along with the two defendants) were crack cocaine users; infact, Ruballo described the apartment where the incident began as a "crack house." The jurorsdeliberated for three days and twice sent notes that they were deadlocked; quite possibly theirimpasse was caused at least in part by their wrestling with [*5]thewitnesses' confusing and contradictory testimony. For that reason, I am of the opinion the mattershould be remanded for a new trial. [See 10 Misc 3d 1060(A), 2005 NY Slip Op52055(U).]
Footnote 1: Codefendant Figueroa, who wasalso convicted of second degree robbery as well as other crimes (see People v Figueroa, 48 AD3d324 [2008]), did not raise the bolstering issue on his appeal.
Footnote 2: The evidence againstcodefendant Figueroa was considerably stronger. For example, both Cruz and Ruballo testifiedthat Figueroa had beaten and kicked Cruz, but their testimony conflicted as to whether defendanthad done more than hold Ruballo back while Figueroa attacked Cruz. Moreover, at thesentencing hearing, Figueroa admitted that he had physically attacked Cruz and cut him, and healso stated that defendant was "innocent" and had not been involved with the incident betweenFigueroa and Cruz.