| People v Torres |
| 2015 NY Slip Op 06376 [130 AD3d 1082] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Davone Torres, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Elizabeth Budnitz of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Kayonia Whetstone of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered May 9, 2013, convicting him of robbery in the second degree (twocounts) and assault in the second degree (two counts), after a nonjury trial, and imposingsentence.
Ordered that the judgment is modified, on the law, by vacating the defendant'sconvictions of robbery in the second degree under counts three and four of theindictment, and assault in the second degree under count six of the indictment, vacatingthe sentences imposed thereon, and dismissing those counts of the indictment against thedefendant; as so modified, the judgment is affirmed.
The defendant, and a codefendant, David Caraballo, were convicted after a nonjurytrial of two counts of robbery in the second degree and two counts of assault in thesecond degree in connection with an incident that occurred on October 22, 2011. Thecomplainant, Gary Stopa, an off-duty detective with the New York City PoliceDepartment, testified that, while walking his dog in Far Rockaway, Queens, he wasapproached by a juvenile, who, brandishing a fake handgun resembling a Glock pistol,attempted to rob him. Stopa identified himself as a police officer and pointed his off-dutyfirearm at the juvenile, who dropped the fake gun and ran away, leaving the fake gunbehind. Stopa placed the fake gun in the front pocket of the sweatshirt he was wearing.He called the 911 emergency number to report the incident and was putting a leash on hisdog when Caraballo approached him on a bicycle. While Stopa was on the telephonewith the 911 operator, Caraballo got off of the bicycle and stood in front of Stopa, abouta foot away, pointing a gun at Stopa and demanding that he hand over his off-dutyfirearm. A scuffle ensued between Stopa and Caraballo. During the scuffle, Stopamanaged to break the slide off of the gun that Caraballo had pointed at him and droppedit on the ground.
The defendant, who had been lingering nearby, charged toward Stopa. According toStopa, he then drew his off-duty firearm and identified himself as a police officer. Thedefendant reportedly hesitated, but then continued to charge at Stopa. The defendant andCaraballo wrestled [*2]with Stopa for his off-dutyfirearm. The gun went off and a bullet narrowly missed Stopa's face. Ultimately, Stopawas able to discharge his gun and the defendant and Caraballo ran off.
It was only after the incident and observing that the fake gun had been removed fromhis front pocket that Stopa realized that the gun which Caraballo had pointed at him wasthe same fake gun that the juvenile had dropped only moments before. Stopa testifiedthat Caraballo had managed to remove the fake gun from Stopa's front pocket withoutStopa's knowledge while he had been tending to his dog and speaking to the 911operator. Stopa alleged that as a result of the incident, he suffered, inter alia, tremendouspain in his shoulder, which required multiple surgeries and limited the range of motion inhis shooting arm. The defendant and Caraballo were indicted and charged with, inter alia,two counts of robbery in the second degree in connection with the fake gun and twocounts of assault in the second degree.
We agree with the defendant that the evidence was legally insufficient to provebeyond a reasonable doubt his guilt of robbery in the second degree pursuant to PenalLaw § 160.10 (1) and (2) (a), based on the alleged robbery of the fake gun.Under these provisions, a person is guilty of robbery in the second degree when thatperson forcibly steals property and (1) that person is aided by another person actuallypresent (see Penal Law § 160.10 [1]), or (2), in the course of thecommission of the crime or immediate flight therefrom, that person or another participantin the crime causes physical injury to any person who is not a participant in the crime(see Penal Law § 160.10 [2] [a]). A person forcibly steals propertyand commits robbery when, in the course of committing a larceny, that person uses orthreatens the immediate use of physical force upon another person for the purpose ofpreventing or overcoming resistance to the taking of property or to the retention thereofimmediately after the taking or for the purpose of compelling the owner of such propertyor another person to deliver the property or to engage in other conduct which aids in thecommission of the larceny (see Penal Law § 160.00).
Here, Stopa's testimony, and the rational inferences that could be drawn therefrom,did not establish that Caraballo used force when he took the fake gun from Stopa'spocket. Stopa testified that he did not feel or witness Caraballo take the fake gun fromhis pocket. Furthermore, Stopa's testimony revealed that the defendant never hadpossession of or even touched the fake gun. " 'The core requirement for all threedegrees of robbery under the Penal Law is proof that the defendant forcibly stoleproperty from another' " (People v Hiraeta, 117 AD3d 964, 965 [2014], quotingPeople v Lopez, 73 NY2d 214, 219 [1989]). Here, there was no evidence thateither the defendant or Caraballo forcibly took the fake gun from Stopa. Thus, evenwhen viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), the evidence was legally insufficient to establishthe defendant's guilt of robbery in the second degree beyond a reasonable doubt.
We also must vacate the defendant's conviction of assault in the second degree underPenal Law § 120.05 (6) on the ground that the evidence is legallyinsufficient to support the conviction. The statute is satisfied when a defendantintentionally causes physical injury in the course and furtherance of the commission orattempted commission of a felony, or during the immediate flight therefrom (seePenal Law § 120.05 [6]). A conviction of an underlying felony contained inthe indictment or its attempted commission is an essential element of the crime (seePeople v Sanchez, 128 AD2d 377 [1987]). Since the defendant's convictions ofrobbery in the second degree are vacated, the conviction of assault in the second degreepursuant to Penal Law § 120.05 (6) must be vacated as well (see People v McCallop, 34AD3d 360, 361 [2006]).
However, we affirm the defendant's conviction of assault in the second degree underPenal Law § 120.05 (3). The defendant's arguments on appeal that theevidence was legally insufficient because the People failed to prove that he knew Stopawas a police officer and that he injured Stopa to prevent him from performing a lawfulduty are unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d at 621), we find that it was legallysufficient to establish the defendant's guilt of that crime. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(see CPL 470.15; Peoplev [*3]Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict finding the defendant guilty of assault in the seconddegree under Penal Law 120.05 (3) was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]; People vGurgov, 129 AD3d 989 [2d Dept 2015]). To sustain a conviction under PenalLaw § 120.05 (3), the People were required to prove that the defendant,with intent to prevent a police officer from performing a lawful duty, caused physicalinjury to such police officer (see People v Sawyer, 270 AD2d 293 [2000]). Here,the jury reasonably determined that all of the statute's elements were established. The factthat Stopa had yelled "police" when the defendant initially charged toward him, and thatthe defendant, after briefly hesitating, continued his charge, supported the jury'sconclusion that the defendant heard what Stopa had yelled and, thus, was aware thatStopa was performing a lawful duty, notwithstanding that he was out of uniform. In thisrespect, many of the cases cited by the defendant on appeal, wherein the police officerswere in uniform, are distinguishable. The lawful duty that Stopa was performinginvolved his continuing efforts to safeguard, and to later turn in, the fake gun he initiallyseized from the juvenile as evidence of that separate crime (see People v Bueno, 18 NY3d160 [2011]; People v Sawyer, 270 AD2d 293 [2000]). It was reasonable forthe jury to infer that the defendant knew of the significance of the fake gun from hisclose proximity to the events and his involvement with Carabello in the attack on Stopa.Regarding the physical injury element, the People established, through the testimony ofStopa, that he received a painful shoulder injury in the altercation, which requiredsurgery and several months of physical therapy (see Penal Law§ 10.00 [9]; Peoplev Peterson, 71 AD3d 1419 [2010]; People v Williams, 46 AD3d 1115 [2007]).
Moreover, contrary to the defendant's contention, the evidence was not legallyinsufficient and was not against the weight of the evidence on the ground that Stopa'stestimony was incredible. Stopa's testimony was corroborated in crucial respects by his911 call, a video, and a neighborhood witness. Dillon, J.P., Dickerson, Roman andLaSalle, JJ., concur.