| People v Nelson |
| 2009 NY Slip Op 05384 [63 AD3d 629] |
| June 30, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Leroy Nelson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered December 18,2007, convicting defendant, after a jury trial, of two counts of robbery in the second degree, andsentencing him to concurrent terms of five years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis fordisturbing the jury's determinations concerning credibility, or its finding that, by throwing him tothe ground and repeatedly kicking him, defendant caused physical injury to the victim. Toestablish the element of physical injury, the People were only required to prove that the victim'sinjuries were more than mere "petty slaps, shoves, kicks and the like" (Matter of PhilipA., 49 NY2d 198, 200 [1980]). Relatively minor injuries causing moderate, but "more thanslight or trivial pain" may suffice (see People v Chiddick, 8 NY3d 445, 447 [2007][fingernail injury]), as may injuries that did not lead to any medical treatment (see People vGuidice, 83 NY2d 630, 636 [1994]). The evidence supports the conclusion that the victim'sinjuries were well above the required threshold.
Given the particular sequence of events, the court properly exercised its discretion inprecluding defendant from cross-examining the cooperating former codefendant regarding thepotential sentence to which he would have been exposed had he been convicted of the originalcharges, and the court's ruling did not deprive defendant of his right to confront witnesses(see Delaware v Van Arsdall, 475 US 673, 678-679 [1986]). The record establishes thatthe codefendant's original attempt to seek leniency in return for cooperation was rejected by theprosecutor. The codefendant then pleaded guilty to attempted robbery in the second degree witha promised sentence of one year, not in return for any cooperation. Prior to his sentencing, thecodefendant, whose exposure was already down to one year, then successfully negotiated acooperation agreement that contemplated further leniency in return for his testimony. Underthese circumstances, the 15-year maximum term he might have faced had he not already pleadedguilty was no longer relevant to the codefendant's credibility at the time of trial. While thatexposure may have motivated his initial, unsuccessful attempt to cooperate, that exposure nolonger existed at the time of the trial, and the codefendant's motivation, as fully explored before[*2]the jury, was to obtain a sentence of less than one year.
Although the People were obligated to disclose a prior inconsistent statement made by thecooperating former codefendant (see Brady v Maryland, 373 US 83 [1963]), there is noreasonable possibility that the nondisclosure contributed to the verdict (see People vVilardi, 76 NY2d 67, 77 [1990]). The inconsistency was limited to the precise manner inwhich the codefendant, while acting in concert with defendant, obtained the victim's wallet.However, impeachment of the codefendant by this inconsistency would have been cumulative,since the jury was made aware of a much more damaging inconsistent statement he made to thepolice, as well as the fact that he was testifying under a cooperation agreement. Furthermore, thecodefendant's testimony, in turn, was cumulative to that of the victim, whose credible testimonyestablished defendant's guilt beyond a reasonable doubt. Concur—Gonzalez, P.J.,Friedman, Moskowitz, Renwick and Freedman, JJ.