| People v Hiraeta |
| 2014 NY Slip Op 03698 [117 AD3d 964] |
| May 21, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jose M. Hiraeta, Appellant. |
Scott A. Rosenberg, New York, N.Y. (Adrienne Hale and Andrew C. Fine ofcounsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John Castellano,Johnnette Traill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered May 6, 2010, convicting him of gang assault in the first degree,assault in the first degree, robbery in the first degree (two counts), robbery in the seconddegree, and criminal possession of a weapon in the fourth degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress his statement tolaw enforcement officials.
Ordered that the judgment is modified, on the law, by vacating the convictions ofrobbery in the first degree and robbery in the second degree, vacating the sentencesimposed thereon, and dismissing those counts of the indictment; as so modified, thejudgment is affirmed.
The hearing court erred in denying suppression of the defendant's statement to adetective regarding his gang affiliation, which was probative of his identity as one of thevictim's attackers. The statement was obtained in response to questioning while thedefendant was in custody, but before he was advised of his Miranda rights(see Miranda v Arizona, 384 US 436 [1966]). Contrary to the hearing court'sdetermination, the information contained in the statement did not constitute pedigreeinformation under the circumstances of this case (see People v Rodney, 85 NY2d289, 292-294 [1995]; cf. Rosa v McCray, 396 F3d 210, 222 [2d Cir 2005]; People v Flowers, 59 AD3d1141, 1143 [2009]; People v Acevedo, 258 AD2d 140, 143 [1999];People v Ennis, 197 AD2d 404 [1993]). However, the error was harmless beyonda reasonable doubt. There was overwhelming evidence at trial of the defendant's identityas one of the attackers, including his gang affiliation, and there is no reasonablepossibility that the error contributed to his convictions (see People v Crimmins,36 NY2d 230, 237 [1975]; People v Hamlin, 71 NY2d 750, 756 [1988]; People v Smith, 42 AD3d553 [2007]; People vAlleyne, 34 AD3d 367, 368 [2006]).
Contrary to the defendant's contention, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish his guilt of gang assault in the first degree andassault in the first degree (see Penal Law §§ 120.10 [1];120.07; People v Stewart,18 NY3d 831, 832-833 [2011]; People v Pickersgill, 41 AD3d 866, 867 [2007]; Peoplev Crawford, 200 AD2d 683, 684 [1994]; People v Blunt, 176 AD2d 741, 742[1991]). Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the factfinder's opportunityto view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt as to those crimes was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
However, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally insufficient toestablish the defendant's guilt of robbery in the first degree and robbery in the seconddegree. "The core requirement for all three degrees of robbery under the Penal Law isproof that the defendant forcibly stole property from another" (People v Lopez,73 NY2d 214, 219 [1989]; see Penal Law §§ 160.00, 160.05,160.10, 160.15). Here, the defendant's convictions arose out of an incident that occurredin the early morning hours, after the victim and his friend finished doing their laundry ata 24-hour laundromat. The victim and his friend were assaulted by the defendant and atleast eight other individuals. The evidence at trial showed that the victim was wearingtwo necklaces before the assault, and that during the attack the necklaces were "lost," or"disappeared." There was no evidence that one or more of the attackers expressed orotherwise displayed an interest in the necklaces before or during the assault. Moreover,there was no evidence that any of the attackers touched the necklaces during the assault.Under these circumstances, we find that there was legally insufficient evidence of aforcible taking. Furthermore, there was legally insufficient evidence that the defendanthad the requisite intent to commit such a taking (see People v Farrell, 61 AD3d 696, 697 [2009]; People v Mendez, 34 AD3d697, 698 [2006]; cf. Matter of Juan J., 81 NY2d 739, 741 [1992]; Matter of Louis C., 6 AD3d430, 431 [2004]).
The defendant's contention that there was insufficient evidence that a bike chain usedin the subject assault constituted a dangerous instrument, raised in his supplemental prose brief, is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 491-492 [2008]). In any event, viewing the evidence in the light most favorableto the prosecution, we find that it was legally sufficient to support a determination thatthe bike chain was a dangerous instrument readily capable of causing serious physicalinjury (see Penal Law § 10.00 [13]; Matter of Juan J., 81NY2d at 741; People v Richardson, 166 AD2d 158, 159 [1990]; cf. People v Hall, 18 NY3d122, 129 [2011]). Moreover, upon reviewing the record here, we are satisfied thatsuch determination was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]; People v Richardson, 166 AD2d at 159).
The defendant's contention, raised in his pro se supplemental brief, that the trialcourt's jury charge concerning accessorial liability was confusing, is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d at491-492). In any event, contrary to his contention, the court's charge as a wholeconveyed the proper standard (see People v Delphin, 26 AD3d 343 [2006]).
The defendant preserved for appellate review his contention, raised in his pro sesupplemental brief, that the prosecutor's summation remarks concerning the victim'sability to remember the crimes were improper. However, his contention is without merit.The challenged remarks were either responsive to arguments made by defense counsel,constituted fair comment on the evidence, or otherwise did not deprive the defendant of afair trial (see People v Paul,82 AD3d 1267, 1268 [2011]; People v Bowen, 67 AD3d 1022, 1023 [2009]; People v Dunn, 54 AD3d871 [2008]). The defendant's remaining challenges to the prosecutor's summationremarks, raised in his pro se supplemental brief, are unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, without merit.
The defendant's remaining contentions, raised in his pro se supplemental brief, areunpreserved for appellate review (see CPL 470.05 [2]) and, in any event, withoutmerit.
In light of our determination, we need not reach the defendant's contention that thesentences imposed upon his conviction of robbery in the second degree and two countsof robbery in the first degree were excessive. The sentences imposed upon thedefendant's conviction of gang assault in the first degree, assault in the first degree, andcriminal possession of a weapon in the fourth degree were not excessive. Skelos, J.P.,Sgroi, Cohen and LaSalle, JJ., concur.