| People v Coleman |
| 2015 NY Slip Op 09750 [134 AD3d 1555] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRonald Coleman, Jr., Also Known as Ronald Coleman,Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Ronald Coleman, Jr., defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered August 31, 2011. The judgment convicted defendant, upon a jury verdict, ofkidnapping in the first degree, robbery in the first degree (two counts), criminalpossession of a weapon in the second degree (two counts), robbery in the second degreeand assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of assault in the second degree anddismissing count eight of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of kidnapping in the first degree (Penal Law § 135.25 [1]), robberyin the second degree (§ 160.10 [1]), and assault in the second degree(§ 120.05 [2]), and two counts each of robbery in the first degree(§ 160.15 [2], [4]) and criminal possession of a weapon in the seconddegree (§ 265.03 [1] [b]; [3]). We agree with defendant that the evidence islegally insufficient to support his conviction of assault in the second degree because thereis insufficient evidence that the victim sustained a physical injury, i.e., "impairment ofphysical condition or substantial pain" (§ 10.00 [9]; see§ 120.05 [2]). Although the evidence at trial established that, afterdefendant hit the victim in the face with a gun, the victim sustained a small bruise withsome swelling beneath the eye and felt some pain, the victim also testified that he did notseek medical attention, and there was no testimony about the extent or duration of thevictim's pain or whether the injury curtailed the victim's activities (see People v Perry, 122 AD3d775, 775-776 [2014], lv denied 24 NY3d 1122 [2015]; People v Zalevsky, 82 AD3d1136, 1137 [2011], lv denied 19 NY3d 978 [2012], reconsiderationdenied 19 NY3d 1106 [2012]; see generally People v Haynes, 104 AD3d 1142,1142-1143 [2013], lv denied 22 NY3d 1156 [2014]; cf. People v Myers, 87 AD3d826, 827 [2011], lv denied 17 NY3d 954 [2011]). We therefore modify thejudgment accordingly.
With respect to the remaining counts of which defendant was convicted, we concludethat the evidence is legally sufficient to support the conviction (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Additionally, viewing the evidence in light ofthe elements of the remaining crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention, also raised in his pro sesupplemental brief, that the verdict is against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495). Also contrary to defendant's contention, thephoto array used in the pretrial identification procedure was not unduly suggestiveinasmuch as "the fact that he was photographed from a closer range did notimpermissibly draw attention to his photograph in the array" (People v Brown, 125 AD3d1550, 1550 [2015]; see People v Ofield, 280 AD2d 978, 979 [2001], lvdenied 96 NY2d 832 [2001]). Defendant further contends that we should modify thejudgment as a matter of discretion in the interest of justice by reversing one of hisconvictions of [*2]robbery in the first degree becauseboth counts involved the forcible theft of the same property, and by reversing one of hisconvictions of criminal possession of a weapon in the second degree because both countsinvolved the possession of the same weapon. We decline to do so inasmuch as eachcount of which defendant was convicted was a separate crime (see People v Rice, 5 AD3d1074, 1074 [2004], lv denied 2 NY3d 805 [2004]).
Defendant failed to preserve for our review his contentions that County Court erredin its Sandoval ruling (see People v Tolliver, 93 AD3d 1150, 1151 [2012], lvdenied 19 NY3d 968 [2012]), and that the indictment is multiplicitous (see People v Jefferson, 125AD3d 1463, 1464 [2015], lv denied 25 NY3d 990 [2015]; People v Quinn, 103 AD3d1258, 1258 [2013], lv denied 21 NY3d 946 [2013]). Defendant also failed topreserve for our review his contention in his pro se supplemental brief that the courterred in its charge to the jury (see People v Humphrey, 109 AD3d 1173, 1174 [2013],lv denied 24 NY3d 1044 [2014]), as well as his contention therein that the verdictis repugnant (see People vSpears, 125 AD3d 1401, 1402 [2015], lv denied 25 NY3d 1172 [2015]).We decline to exercise our power to review those contentions as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]).
Defendant's remaining contentions are set forth in his pro se supplemental brief. Hiscontention that the court erred in refusing to suppress statements that he made to thepolice is moot because the prosecution did not introduce those statements at trial (see People v Wegman, 2 AD3d1333, 1335 [2003], lv denied 2 NY3d 747 [2004]). We reject defendant'scontention that defense counsel's failure to make a motion pursuant to CPL 190.50 (5) (c)deprived him of effective assistance of counsel. Defendant "has not established that 'hewas prejudiced by the failure of [defense counsel] to effectuate his appearance before thegrand jury' or that, 'had he testified in the grand jury, the outcome would have beendifferent' " (People vJames, 92 AD3d 1207, 1208 [2012], lv denied 19 NY3d 962 [2012],quoting People v Simmons,10 NY3d 946, 949 [2008]; see People v Dixon, 37 AD3d 1124, 1124-1125 [2007],lv denied 10 NY3d 764 [2008]). Finally, we have examined defendant'sremaining contention in his pro se supplemental brief and conclude that it lacks merit.Present—Scudder, P.J., Centra, Carni, Valentino and DeJoseph, JJ.