| People v Philips |
| 2014 NY Slip Op 06109 [120 AD3d 1266] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tarik Philips, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andCamille O'Hara Gillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott,J.), rendered January 3, 2006, convicting him of murder in the second degree, attemptedmurder in the second degree, assault in the first degree (two counts), and criminalpossession of a weapon in the second degree, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress his statements to law enforcementauthorities.
Ordered that the judgment is modified, on the law, by reducing the defendant'sconviction of assault in the first degree under count three of the indictment to assault inthe third degree, and vacating the sentence imposed thereon; as so modified, thejudgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, forfurther proceedings in accordance herewith.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish,beyond a reasonable doubt, the defendant's guilt of murder in the second degree,attempted murder in the second degree, criminal possession of a weapon in the seconddegree, and assault in the first degree under count four of the indictment. Moreover, infulfilling 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, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt on those counts was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
However, we agree with the defendant that the evidence was not legally sufficient toestablish his guilt of assault in the first degree under count three of the indictmentbecause it did not demonstrate that the complainant Spraus sustained a "serious physicalinjury" (Penal Law §§ 10.00 [10]; 120.10 [3]; see People v Brown, 100AD3d 1035 [2012]; Peoplev Adames, 52 AD3d 617, 618 [2008]; [*2]People v Gray, 30 AD3d771, 772-773 [2006]; People v Phillip, 279 AD2d 802, 803 [2001]). Spraus'stestimony and the medical records submitted into evidence were insufficient to prove thatthe injuries Spraus suffered created a substantial risk of death, or caused "serious andprotracted disfigurement, protracted impairment of heath or protracted loss or impairmentof the function of any bodily organ" within the meaning of Penal Law§ 10.00 (10) (seePeople v Mazariego, 117 AD3d 1082 [2014]; People v Nimmons, 95 AD3d1360 [2012]; People vTucker, 91 AD3d 1030, 1031-1032 [2012]). Nevertheless, the evidence waslegally sufficient to establish the defendant's guilt of the lesser-included offense ofassault in the third degree (see Penal Law § 120.00 [2]).Accordingly, we reduce the conviction of assault in the first degree under count three ofthe indictment to a conviction of assault in the third degree, and vacate the sentenceimposed under count three of the indictment. Although the defendant has already servedthe maximum sentence that could be imposed for assault in the third degree (seePenal Law § 70.15 [1]), we nevertheless remit the matter to the SupremeCourt, Kings County, for the imposition of an authorized sentence for that offense (see People v Mighty, 109AD3d 841 [2013]; People vSutherland, 102 AD3d 897 [2013]; People v Rumley, 102 AD3d 894 [2013]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in granting the People's application to reopen their case to admit certainevidence concerning a witness's ability to describe the defendant shortly after theshooting in order to rectify a misleading impression created by defense counsel'ssummation (see People vThompson, 81 AD3d 670, 671-672 [2011], affd 22 NY3d 687 [2014];People v Loney, 43 AD3d726 [2007]; People v De Los Angeles, 270 AD2d 196, 199 [2000], affdsub nom. People v Collins, 96 NY2d 837 [2001]; see also People v Massie, 2NY3d 179, 185 [2004]).
The defendant's contention that certain remarks made by the prosecutor duringsummation deprived him of a fair trial is largely unpreserved for appellate review, sincehe either failed to object to the remarks at issue, made only a general objection, or failedto request further curative relief when his objections were sustained, and he failed tomake a timely motion for a mistrial on the specific grounds he now asserts on appeal(see CPL 470.05 [2]; People v Martin, 116 AD3d 981 [2014]; People v Jorgensen, 113 AD3d793, 794 [2014]; People vHoke, 111 AD3d 959 [2013]). In any event, the challenged portions of theprosecutor's summation were fair comment upon the evidence, were responsive to thedefense counsel's summation, were within the bounds of rhetorical comment, or do nototherwise require reversal (see People v Galloway, 54 NY2d 396, 399 [1981];People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Martin, 116 AD3d981 [2014]; People vHerb, 110 AD3d 829, 831 [2013]). To the extent that any prejudicial effect mayhave resulted from certain remarks, it was ameliorated by the trial court's immediateadmonitions (see People vMartinez, 58 AD3d 754 [2009]; People v White, 5 AD3d 511 [2004]).
The sentence imposed with respect to the remaining crimes of which the defendantwas convicted was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's contention, in his pro se supplemental brief, that his statementsshould have been suppressed because they were obtained in violation of his right tocounsel is based on matter dehors the record and, thus, cannot be reviewed on directappeal (see People v Lee,105 AD3d 870, 871 [2013]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Balkin, J.P., Leventhal, Maltese and LaSalle, JJ., concur.