| People v Gonzalez |
| 2008 NY Slip Op 00523 [47 AD3d 831] |
| January 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisGonzalez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Kristina Sapaskis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann,J.), rendered July 14, 2005, convicting him of robbery in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is Ordered.
The defendant was accused of committing a robbery on the morning of August 30, 2004 inQueens County. The prosecution's case depended entirely on the testimony of the complainant,who testified that she noticed a man driving a gray Nissan Sentra as she was walking towards thetrain station near her home. The man parked the car, followed her onto a pedestrian footbridge,and grabbed her handbag. She then struggled with him over the bag, chased him back to his car,jumped onto his lap in the car, and continued to struggle with him until he pushed her out of thecar and drove off, dragging her for several feet. Immediately after the incident, the victimdescribed her assailant to a police detective as being a "well-built," dark-skinned Hispanic malein his mid-30s, weighing about 150 pounds and about 5 feet, 9 inches tall. At the police precinct,the victim picked the defendant's photograph out of a photo array, and the next evening sheidentified him in a line-up.
The defendant is a tan-skinned Hispanic male, 5 feet, 9 inches tall, who weighs more than200 pounds and has a distinctive goatee and a tattoo covering his right forearm. Before trial, thedefendant moved in limine for leave to present expert testimony on the reliability of eyewitnessidentification testimony. Without holding a Frye hearing (see Frye v UnitedStates, 293 F 1013 [1923]), [*2]the motion court (Braun, J.)denied the motion with leave to renew before the judge to whom the matter would be assignedfor trial; on renewal, the trial court (McGann, J.) adhered to so much of the motion court'sdetermination as denied the motion. At trial, the defense presented two alibi witnesses whotestified that the defendant had spent the entire day of the robbery at home in Brooklyn with hisgirlfriend, their newborn son, a family friend, and another child. The jury found the defendantguilty of robbery in the third degree.
The defendant's contention that the conviction was not supported by legally sufficientevidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray,86 NY2d 10 [1995]; People v Bynum, 70 NY2d 858 [1987]). In any event, viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyonda reasonable doubt. The complainant testified consistently that she had seen her attacker clearlyand, thus, it was for the jury to weigh the relative credibility of the victim against that of the alibiwitnesses (see People v Calabria, 3NY3d 80, 82 [2004]; People v Arroyo, 54 NY2d 567, 578 [1982], cert denied456 US 979 [1982]; People vVecchio, 31 AD3d 674 [2006]; People v Melendez, 272 AD2d 343, 343-344[2000]). Upon the exercise of our factual review power (see CPL 470.15 [2]), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]). Upon weighing the "relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony," wecannot conclude that the trier of fact failed to give the evidence the weight it should be accorded(People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks omitted]; seePeople ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see also CPL 470.15 [5];People v Romero, 7 NY3d at 645-647).
However, in light of People vLeGrand (8 NY3d 449, 452 [2007]), it was error, under the circumstances of this case,for the trial court to deny the defendant's motion for leave to present expert testimony concerningthe reliability of eyewitness identification. Crane, J.P., Florio, Angiolillo and Carni, JJ., concur.