| People v Caraballo |
| 2016 NY Slip Op 01197 [136 AD3d 937] |
| February 17, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v David Caraballo, Appellant. |
Seymour W. James, Jr., New York, NY (E. Deronn Bowen of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, and Deborah E. Wassel 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. The appeal brings up for review the denial, after a hearing (McGann, J.), of thatbranch of the defendant's omnibus motion which was to suppress identificationtestimony.
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, Davone Torres, 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 his sweatshirt. Stopa called the911 emergency number to report the incident and was putting a leash on his dog whenthe defendant approached him on a bicycle. While Stopa was still on the mobile phonewith the 911 operator and tending to his dog, the defendant got off of the bicycle and,pointing a gun at Stopa, demanded that he hand over his off-duty firearm. Stopa grabbedthe gun from the defendant's hand and a struggle ensued. During the struggle, Stopabroke the slide off the gun that the defendant was holding and dropped it on theground.
The codefendant, who had been lingering nearby, charged toward Stopa. In response,Stopa drew his off-duty firearm and identified himself as a police officer. Thecodefendant reportedly hesitated, but then continued to charge at Stopa. The defendantand codefendant wrestled with Stopa for control of Stopa's off-duty firearm. Ultimately,Stopa managed to discharge his gun [*2]and thedefendant and codefendant ran off.
It was only after the incident that Stopa realized that the gun which the defendant hadpointed at him was the same fake gun that Stopa had placed in the front pocket of hissweatshirt. Stopa testified that the defendant had managed to remove the fake gun fromhis front pocket without his knowledge while he had been tending to his dog andspeaking to the 911 operator. Stopa alleged that as a result of the incident, he suffered,inter alia, tremendous pain in his shoulder, which required multiple surgeries and limitedthe range of motion in his shooting arm. The defendant and codefendant were indictedand charged with, inter alia, two counts of robbery in the second degree in connectionwith the fake gun and two counts 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(see People v Torres, 130AD3d 1082, 1083-1084 [2015]). Under these provisions, a person is guilty ofrobbery in the second degree when that person forcibly steals property and (1) thatperson is aided by another person actually present (Penal Law § 160.10[1]), or (2), in the course of the commission of the crime or immediate flight therefrom,that person or another participant in the crime causes physical injury to any person who isnot a participant in the crime (Penal Law § 160.10 [2] [a]). A personforcibly steals property and commits robbery when, in the course of committing alarceny, that person uses or threatens the immediate use of physical force upon anotherperson for the purpose of preventing or overcoming resistance to the taking of propertyor to the retention thereof immediately after the taking or for the purpose of compellingthe owner of such property or another person to deliver the property or to engage in otherconduct which aids in the commission of the larceny (Penal Law§ 160.00).
Here, Stopa's testimony, and the rational inferences that could be drawn therefrom,did not establish that the defendant used force when he took the fake gun from Stopa'spocket. Even viewing the evidence in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), there was no evidence that either thedefendant or the codefendant forcibly took the fake gun from Stopa. Therefore, theevidence was legally insufficient to establish the defendant's guilt of robbery in thesecond degree beyond a reasonable doubt (see People v Torres, 130 AD3d at1083-1084).
We must also vacate the defendant's conviction of assault in the second degree underPenal Law § 120.05 (6) on the ground that the evidence was legallyinsufficient to support that 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, 378 [1987]). Since we are vacating thedefendant's convictions of robbery in the second degree, the conviction of assault in thesecond degree pursuant to Penal Law § 120.05 (6) must be vacated as well(see People v Torres, 130 AD3d at 1084; People v McCallop, 34 AD3d 360, 361 [2006]).
However, contrary to the defendant's contention, the evidence was legally sufficientto establish, beyond a reasonable doubt, his guilt of assault in the second degree underPenal Law § 120.05 (3). Viewing the evidence in the light most favorable tothe People (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 Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thefactfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdictfinding the defendant guilty of assault in the second degree 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 [2015]).
To sustain a conviction under Penal Law § 120.05 (3), the People wererequired to [*3]prove that the defendant, with intent toprevent a police officer from performing a lawful duty, caused physical injury to suchpolice officer (see People vHurdle, 106 AD3d 1100, 1103-1104 [2013]; People v Sawyer, 270AD2d 293, 294 [2000]). Here, the factfinder reasonably determined that all of thestatute's elements were established (see People v Bueno, 18 NY3d 160 [2011]; People vSawyer, 270 AD2d at 294). Although Stopa testified that he did not identify himselfas a police officer when the defendant first initiated the struggle over Stopa's off-dutyfirearm, it was reasonable for the factfinder to conclude that the defendant heard Stopaverbally identify himself as a police officer when the codefendant joined in thealtercation and charged at Stopa. The record further supports the conclusion that, evenafter hearing Stopa identify himself as a police officer, the defendant twisted Stopa's armin an attempt to gain control of his gun and point it at Stopa. Stopa testified that he wasforced to spin in circles to avoid facing the muzzle of his own gun and that one bulletwas discharged, passing by his left ear. Stopa testified that the defendant then punchedhim in the face, knocking off his glasses. Stopa testified that he fell to the ground afterlosing his balance and that the defendant remained on top of him, continuing the attack.The altercation ended only after Stopa managed to discharge the remaining rounds of hisweapon, causing the defendant and codefendant to flee. Regarding the physical injuryelement, the People established, through the testimony of Stopa, that he received apainful shoulder injury in the altercation, which required surgery and several months ofphysical therapy (see Penal Law § 10.00 [9]; People vTorres, 130 AD3d at 1085; People v Peterson, 71 AD3d 1419 [2010]; People v Williams, 46 AD3d1115 [2007]).
The defendant's contentions with respect to the denial of that branch of his omnibusmotion which was to suppress identification testimony are unpreserved for appellatereview (see CPL 470.05 [2]) and, in any event, without merit (see People vRobert, 184 AD2d 597, 598 [1992]).
The sentence imposed on the conviction of assault in the second degree under countfive of the indictment was neither illegal nor excessive (see People v Araujo, 101AD3d 741 [2012]; People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Sgroi,Miller and Hinds-Radix, JJ., concur.