| People v Calas |
| 2015 NY Slip Op 09440 [134 AD3d 1043] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Gregory Calas, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), forappellant.
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, attempted murder in the second degree, assault in the first degree, assault in thesecond degree, and criminal possession of a weapon in the second degree (two counts),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.
The defendant's contention that the evidence was legally insufficient to establish hisidentity as one of the perpetrators is unpreserved for appellate review (see CPL470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]; People v Pitre, 108 AD3d 643, 643 [2013]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's identity as one of the perpetrators beyond a reasonable doubt. Further,contrary to the defendant's contention, viewing the evidence in the light most favorableto the People, we find that it was legally sufficient to establish his guilt of attemptedmurder in the second degree under count 3 of the indictment and criminal possession of aweapon in the second degree under count 11 of the indictment, based upon anacting-in-concert theory, beyond a reasonable doubt (see People v Scott, 25 NY3d 1107 [2015]; Matter ofJuan J., 81 NY2d 739 [1992]; People v Allah, 71 NY2d 830, 832 [1988]; Matter of Tatiana N., 73 AD3d186, 190-191 [2010]). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the jury's verdict as to those crimes wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
[*2] The defendant also failed to preserve for appellatereview his contention that the evidence was legally insufficient to prove the "seriousphysical injury" element of assault in the first degree (see CPL 470.05 [2];People v Hawkins, 11 NY3d at 492). However, upon reviewing this contention inthe interest of justice (see CPL 470.15 [3] [c]; People v Ragguete, 120 AD3d717 [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 v Ekwegbalu, 131AD3d 982 [2015]; People v Ragguete, 120 AD3d at 717; People v Gray, 30 AD3d771, 773 [2006]). Accordingly, we modify the judgment by reducing the defendant'sconviction of assault in the first degree to attempted assault in the first degree, and weremit the matter to the Supreme Court, Queens County, for sentencing on the convictionof attempted assault in the first degree (see People v Ragguete, 120 AD3d at 718;People v Tucker, 91 AD3d at 1032; People v Serrano, 74 AD3d 1104, 1106 [2010]).
The defendant's Batson challenge (see Batson v Kentucky, 476 US 79[1986]) was properly denied, as he failed to make the requisite prima facie showing ofdiscrimination. "It is incumbent upon a party making a Batson challenge toarticulate and develop all of the grounds supporting the claim, both factual and legal,during the colloquy in which the objection is raised and discussed" (People v Cuesta, 103 AD3d913, 914 [2013]; see People v Childress, 81 NY2d 263, 268 [1993]; People v Valdez-Cruz, 99AD3d 738, 738 [2012]). On this record, the defendant failed to make a prima facieshowing of discrimination based on the number of peremptory challenges exercised bythe prosecution against black venirepersons, and the defendant's vague and conclusoryassertions that the challenged jurors were not unqualified to serve on the jury and"similarly situated to members . . . on the jury" (see People v Jones, 11 NY3d822, 823 [2008]; People v Brown, 97 NY2d 500, 507-508 [2002]; Peoplev Childress, 81 NY2d at 267-268; People v Christiani, 96 AD3d 870, 872 [2012]; Peoplev Rodriguez, 272 AD2d 482, 482 [2000]; People v Willingham, 253 AD2d533 [1998]).
The Supreme Court responded meaningfully to the jury's request for a readback ofthe testimony of one of the People's witnesses. It was within the Supreme Court'sdiscretion to give the jurors the option to communicate, through the foreperson, that theyhad heard the testimony that they wanted to hear, and the court did not express anunwillingness to abide by the jury's readback request (see People v Ekwegbalu, 131 AD3d 982 [2015]; People v Gauze, 3 AD3d538, 538 [2004]; People v Chavez, 280 AD2d 350, 350 [2001]; People vGadson, 161 AD2d 795, 796 [1990]).
The defendant's contention with respect to his conviction of assault in the seconddegree is unpreserved for appellate review and, in any event, without merit in light of ourdetermination. The defendant's remaining contentions are without merit. Dillon, J.P.,Miller, Maltese and LaSalle, JJ., concur.