| People v Ekwegbalu |
| 2015 NY Slip Op 06732 [131 AD3d 982] |
| September 2, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Nnonso Ekwegbalu, Appellant. |
Christopher Renfroe, Forest Hills, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lasak, J.), rendered February 13, 2013, convicting him of manslaughter in the firstdegree, assault in the first degree, assault in the second degree, and criminal possessionof a weapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the defendant's conviction of assault in the first degree to attemptedassault in the first degree, and by vacating the sentence imposed thereon; as so modified,the judgment is affirmed, and the matter is remitted to the Supreme Court, QueensCounty, for sentencing on the conviction of attempted assault in the first degree.
Viewing the evidence in the light most favorable to the People (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 manslaughter in the first degree andcriminal possession of a weapon in the second degree, under an acting-in-concert theory(see Matter of Juan J., 81 NY2d 739 [1992]; People v Allah, 71 NY2d830, 832 [1988]; Matter ofTatiana N., 73 AD3d 186, 190-191 [2010]). Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence(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 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 finding the defendant guilty of manslaughter in the first degreeand criminal possession of a weapon in the second degree was not against the weight ofthe evidence (see People vRomero, 7 NY3d 633 [2006]). Contrary to the defendant's contention, the factthat he was acquitted of criminal possession of a weapon in the second degree undercount 11 of the indictment did not undermine the sufficiency or weight of the evidencesupporting the jury's convictions of criminal possession of a weapon in the second degreeunder count 10 of the indictment or manslaughter in the first degree (see People v Mazyck, 118AD3d 728 [2014]; see alsoPeople v Abraham, 22 NY3d 140, 146-147 [2013]; People v Rayam, 94NY2d 557, 562-563 [2000]; People v Alcindor, 118 AD3d 621 [2014]).
The defendant's contention that the evidence was legally insufficient to establish that[*2]the victim sustained a "serious physical injury," asrequired for the conviction of assault in the first degree (Penal Law§§ 10.00 [10]; 120.10 [1]), is unpreserved for appellate review(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). However,upon reviewing this contention in the interest of justice (see CPL 470.15 [3] [c];People v Ragguete, 120AD3d 717 [2014]; People vMazariego, 117 AD3d 1082 [2014]), we find that the evidence, viewed in thelight most favorable to the People (see People v Contes, 60 NY2d 620 [1983]),was not legally sufficient to establish the defendant's guilt of assault in the first degree.The People failed to demonstrate beyond a reasonable doubt that the victim's gunshotwound created "a substantial risk of death," or caused "serious and protracteddisfigurement, protracted impairment of health or protracted loss or impairment of thefunction of any bodily organ" (Penal Law § 10.00 [10]; see People v Nimmons, 95AD3d 1360, 1360-1361 [2012]; People v Tucker, 91 AD3d 1030, 1031-1032 [2012]; People v Horton, 9 AD3d503, 504-505 [2004]). Nevertheless, the evidence presented at trial establishedbeyond a reasonable doubt that the defendant acted with the intent to inflict seriousphysical injury and came "dangerously near" to committing the completed crime(People v Kassebaum, 95 NY2d 611, 618 [2001] [internal quotation marksomitted]; see Penal Law §§ 110.00, 120.10 [1]; People vRagguete, 120 AD3d at 717; People v Gray, 30 AD3d 771, 773 [2006]). Accordingly,we modify the judgment by reducing the defendant's conviction of assault in the firstdegree to attempted assault in the first degree, and we remit the matter to the SupremeCourt, Queens County, for sentencing on the conviction of attempted assault in the firstdegree (see People vRagguete, 120 AD3d 717 [2014]).
Contrary to the defendant's contention, the Supreme Court did not improvidentlyexercise its discretion in denying his motion, made during the trial, to reopen thesuppression hearing. The defendant failed to demonstrate that he discovered additionalfacts, not discoverable with reasonable diligence before the determination of the motion,that would have affected the court's ultimate determination of his suppression motion(see CPL 710.40 [4]; People v Jackson, 97 AD3d 693, 694 [2012]; People v Cepeda, 48 AD3d294, 295 [2008]; People v Musgrove, 261 AD2d 640, 641 [1999]; Peoplev Accardi, 222 AD2d 596, 597 [1995]).
The defendant also contends that the Supreme Court violated CPL 310.30 andcommitted reversible error in its handling of the jury's requests for readbacks oftestimony and certain jury notes concerning the court's instruction as to murder in thesecond degree. These contentions are unpreserved for appellate review (see CPL470.05 [2]; People v Alcide,21 NY3d 687, 694 [2013]; People v Ramirez, 15 NY3d 824, 825-826 [2010]; People v Proctor, 104 AD3d1290, 1291 [2013]) and, in any event, are without merit (see People vMalloy, 55 NY2d 296, 302 [1982]; People v Rivera, 41 AD3d 347 [2007]; People v Gauze, 3 AD3d538, 538 [2004]; People v Chavez, 280 AD2d 350, 350 [2001]; People vHollis, 216 AD2d 17 [1995]). Moreover, the court's instruction on accessorialliability was appropriate, and the Supreme Court meaningfully responded to a jury notewith respect thereto by rereading its original instruction (see People v Slacks, 90NY2d 850, 851 [1997]; People v Malloy, 55 NY2d at 302-303; People v Crosby, 33 AD3d719, 720 [2006]; People v Crayton, 278 AD2d 64 [2000]).
In light of our modification of the judgment, the defendant's contention that theaggregate sentence imposed was excessive has been rendered academic.
The defendant's remaining contentions are without merit. Rivera, J.P., Austin,Roman and Barros, JJ., concur.