| People v Gilford |
| 2009 NY Slip Op 06360 [65 AD3d 840] |
| September 1, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Terrell Gilford, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Frances Y. Wang of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered September 6,2006, convicting defendant, after a nonjury trial, of manslaughter in the first degree, assault inthe first degree and criminal possession of a weapon in the fourth degree, and sentencing him, asa second felony offender, to concurrent terms of 20 years, 20 years and 1 year, respectively,unanimously modified, as a matter of discretion in the interest of justice, to the extent ofreducing the assault conviction to attempted assault in the first degree and reducing the sentencethereon to a term of 10 years, and otherwise affirmed.
We reject defendant's claim that the manslaughter verdict was against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). The court found the eyewitness credible and there is noadequate basis for disturbing that determination. The eyewitness, a friend of the decedent whosaw the fight between defendant and decedent from inches away and who had no plausiblemotive to falsely accuse defendant of inflicting the fatal wound, testified she was certain that itwas defendant who stabbed the decedent in the chest. Moreover, DNA testing established thatblood on defendant's shirt was the decedent's. Under the circumstances, the inference iscompelling that defendant stabbed the decedent with a long knife that was never recovered,rather than the short knife found at the scene that apparently was incapable of causing the fatalwound. Defendant's written statement to the police in which he claimed that he brandished asmall knife that someone gave to him in an open position during the melee, a knife henonetheless described in some detail, could reasonably be interpreted by the factfinder as adeliberate and implausible attempt to distance himself from the longer weapon. In addition, weconclude that the court properly rejected defendant's justification defense with respect to each ofthe charges.
We agree with defendant that the evidence was legally insufficient to support his first-degreeassault conviction, relating to another victim, and we review his unpreserved claim in the interestof justice. The evidence establishes that the second victim was stabbed in the back three timeswhile engaged in a fight with a person other than defendant. This victim also ended up in analtercation with defendant. While there is no evidence to support any theory under whichdefendant would be criminally liable for the deep and dangerous wounds to this victim's back,[*2]the evidence is legally sufficient to establish that defendant,confronting the victim and threatening to "poke" him, thrust a knife into his abdomen. However,the abdominal wound was superficial, did not damage any internal organs, and did not constituteserious physical injury (see e.g. People v Castillo, 199 AD2d 276 [1993]; People vRobles, 173 AD2d 337, 338 [1991], lv denied 78 NY2d 1014 [1991]). Sincedefendant's conduct of thrusting the knife into this victim's abdominal area evinced an intent tocause serious physical injury (see People v Willock, 298 AD2d 161 [2002], lvdenied 99 NY2d 555 [2002]), we reduce the conviction to attempted assault in the firstdegree.
The court properly denied defendant's motion to suppress identification testimony.Defendant challenges a showup identification conducted by an officer who was unaware that, inan unchallenged procedure, the witness had already pointed defendant out to the police asdefendant stood in a crowd of people outside the club where this incident occurred. We find nobasis for suppression of the showup or in-court identifications, because the showup was withinpermissibly close temporal and geographic proximity to the crime (see People v Duuvon,77 NY2d 541, 544-545 [1991]), took place shortly after the witness had already made a reliableidentification (see People v Gilbert, 295 AD2d 275, 276 [2002], lv denied 99NY2d 558 [2002] ["This confirmatory identification following the initial identification madeduring the street canvass was clearly distinguishable from a precinct showup employed as theinitial identification procedure after the crime"]), and was conducted in a manner that was notunduly suggestive (see People vGatling, 38 AD3d 239, 240 [2007], lv denied 9 NY3d 865 [2007]).
Except with respect to the reduced assault conviction, we perceive no basis for reducing thesentence. Concur—Gonzalez, P.J., Saxe, Nardelli and McGuire, JJ.