| People v Phillips |
| 2009 NY Slip Op 09682 [68 AD3d 1137] |
| December 22, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Gerald Phillips, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Spires,J.), rendered December 20, 2006, convicting him of robbery in the first degree and criminalpossession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence, and(2) a judgment of the same court (Gavrin, J.), rendered January 17, 2008, convicting him ofburglary in the first degree and robbery in the second degree, upon a jury verdict after a retrial,and imposing sentence.
Ordered that the judgment rendered December 20, 2006 is modified, on the law, by vacatingthe conviction of criminal possession of stolen property in the fifth degree under count 24 of theindictment, vacating the sentence imposed thereon, and dismissing that count of the indictmentas against the defendant Gerald Phillips; as so modified, the judgment is affirmed; and it isfurther,
Ordered that the judgment rendered January 17, 2008 is reversed, on the law, the convictionsof burglary in the first degree and robbery in the second degree under counts 2 and 17 of theindictment, respectively, and the sentences imposed thereon are vacated, and those counts of theindictment are dismissed as against the defendant Gerald Phillips.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that the evidence presented at the first trial was legallysufficient to establish the defendant's guilt on the charge of robbery in the first degree beyond areasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt on that count was not against the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
However, we find that, even when viewed in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), the evidence was legally insufficient toestablish the defendant's guilt on the charge of criminal possession of a stolen property in thefifth degree (see Penal Law § 165.40). There was no legally sufficient proof fromwhich the jury could have determined beyond a reasonable doubt that any of the personalproperty found in the defendant's possession was owned by the complainant Michelle Bottoms,as charged under count 24 of the indictment. Accordingly, the conviction of criminal [*2]possession of stolen property in the fifth degree and the sentenceimposed thereon must be vacated, and that count of the indictment must be dismissed as to thedefendant.
Viewing the evidence in the light most favorable to the prosecution, we also find that theevidence presented at the second trial was not legally sufficient to establish that the complainantClarence Washington sustained a "physical injury" within the meaning of Penal Law §10.00 (9). The term "physical injury" means "impairment of physical condition or substantialpain" (Penal Law § 10.00 [9]). Here, there was neither sufficient evidence of the extent ofWashington's injuries, nor sufficient evidence from which a jury could infer that he sufferedsubstantial pain (see People v Pierrot, 31 AD3d 582 [2006]; People v Chapero,23 AD3d 492 [2005]; People v Almonte, 23 AD3d 392, 393-394 [2005]; Peoplev Briggs, 285 AD2d 651, 652 [2001]; People v Holden, 148 AD2d 635 [1989];People v Francis, 112 AD2d 167 [1985]). Accordingly, the defendant's convictions forburglary in the first degree (see Penal Law § 140.30 [2]) and robbery in the seconddegree (see Penal Law § 160.10 [2] [a]), and the sentences imposed thereon, mustbe vacated, and counts 2 and 17 of the indictment must be dismissed as to the defendant.
The defendant's contention that the jury verdict in the first trial was repugnant is partiallyunpreserved for appellate review. The defendant timely made his position known that the juryverdict convicting him of robbery in the first degree and acquitting him of the counts of criminalpossession of a weapon in the second and third degree was repugnant by raising the issue beforethe jury was discharged, thereby preserving this contention for appeal. However, the defendantnever raised, before the trial court, his contention that the jury verdict convicting him of robberyin the first degree and acquitting him and his codefendants of robbery in the second degree wasrepugnant. Thus, that specific contention is unpreserved for our review (see CPL 470.05[2]; People v Alfaro, 66 NY2d 985 [1985]; People v Moses, 36 AD3d 720[2007]). As to the preserved contention, we find that the jury verdict was not repugnant (seePeople v Mabry, 288 AD2d 326 [2001]; People v Castillo, 260 AD2d 643 [1999];People v Williams, 255 AD2d 408 [1998]; People v Brown, 224 AD2d 226[1996]; People v Whitmore, 123 AD2d 336, 337 [1986]; People v Ellis, 120AD2d 743 [1986]).
Further, contrary to the defendant's contention, the Supreme Court did not violate his SixthAmendment right to confrontation at either trial by admitting into evidence the recorded 911calls in which a nontestifying complainant sought help in an ongoing emergency situation(see Davis v Washington, 547 US 813, 821-829 [2006]; People v Ward, 57AD3d 582, 583 [2008]; People v Conyers, 33 AD3d 929, 930 [2006]; People vMarino, 21 AD3d 430 [2005], cert denied 548 US 908 [2006]).
The defendant's contention that the sentencing courts failed to follow the proceduralmandates of CPL 400.20 (3) and (4) is unpreserved for appellate review (see People vProctor, 79 NY2d 992 [1992]; People v Oliver, 63 NY2d 973 [1984]; People vRamos, 287 AD2d 471 [2001]), as is his contention that the imposition of consecutive termsof imprisonment violated the principles of Apprendi v New Jersey (530 US 466 [2000])(see People v Black, 23 AD3d 490 [2005]; People v Highsmith, 21 AD3d 1037,1038 [2005]).
The defendant's remaining contentions are either without merit or academic in light of ourdetermination. Skelos, J.P., Eng, Belen and Austin, JJ., concur.