| People v Benitez |
| 2014 NY Slip Op 05890 [120 AD3d 705] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ricardo Benitez, Appellant. |
Dechert LLP, New York, N.Y. (Andrew J. Levander, James M. McGuire, MatthewL. Mazur, and K. Keely Rankin of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered December 14, 2010, convicting him of robbery in the first degreeand robbery in third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and a new trial is ordered.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that he was deprived of his right to effective assistance ofcounsel at the independent source hearing and at trial is without merit (see People vBaldi, 54 NY2d 137, 146-147 [1981]).
Nonetheless, we conclude that a new trial is necessary. The defendant was chargedwith crimes related to a robbery of a Radio Shack store. A detective testified during thePeople's case that he had received information through the "Crime Tips Office" and that,after further investigation, he began looking for a "White male Hispanic, with thepossible name of Rick." The detective went to an apartment on the sixth floor of abuilding located at 82-01 Rockaway Beach Boulevard in Queens, but did not find aperson fitting that description. Later that day, however, the detective was provided withinformation that the person for whom he was looking was in front of that building. Uponarriving there, the detective arrested the defendant, Ricardo Benitez. The detective alsotestified that the defendant, in providing pedigree information, gave his address as 82-01Rockaway Beach Boulevard, Apartment 6B.
During summation, the prosecutor strongly implied that whoever had provided the[*2]tip had implicated the defendant: "Someone calls577-TIPS . . . . [The detective] gets this information and where does he go?82-01 Rockaway Beach Boulevard, make a left out of the elevator. I'm looking for a guynamed Rick who lives on the sixth floor. Ricardo Benitez." After defense counsel'sobjection to this remark was overruled, the prosecutor continued: "Gave Detective Lopezthe following address. 82-01 Rockaway Beach Boulevard, 6B. Rick. Ladies andgentlemen, I introduce you to Rick." Defense counsel again objected, but the SupremeCourt again overruled the objection.
The only purpose of the prosecutor's improper comments was to suggest to the jury,in this one-witness identification case, that the complainant was not the only person whohad implicated the defendant in the commission of the robbery (see People v Mendez, 22AD3d 688, 689 [2005]). Moreover, in overruling defense counsel's objections, theSupreme Court "legitimized" the prosecutor's improper remarks (People v Lloyd, 115 AD3d766, 769 [2014]). The defendant, of course, was given no opportunity tocross-examine the unnamed witness who had allegedly provided the tip (see People v McEaddy, 41AD3d 877, 879-880 [2007]; cf. Crawford v Washington, 541 US 36 [2004]).The evidence against the defendant was not overwhelming, so there is no basis for theapplication of harmless error analysis (see People v Crimmins, 36 NY2d 230, 237[1975]; People v Brown, 26AD3d 392, 393 [2006]). To the extent that the defendant failed to preserve the claimby specific objection, we reach the issue in the exercise of our interest of justicejurisdiction, and reverse the judgment (see CPL 470.15 [6] [a]).
In light of our determination, we need not address the defendant's remainingcontentions. Balkin, J.P., Leventhal, Maltese and LaSalle, JJ., concur.