| People v Medina |
| 2016 NY Slip Op 03663 [139 AD3d 460] |
| May 10, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Robert Medina, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J., atsuppression hearing; Daniel P. FitzGerald, J., at jury trial and sentencing), renderedJanuary 30, 2014, convicting defendant of robbery in the second degree and sentencinghim, as a second violent felony offender, to a term of nine years, unanimouslyaffirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). The evidence established the elementof physical injury (see People vChiddick, 8 NY3d 445, 447 [2007]; People v Guidice, 83 NY2d 630,636 [1994]). The victim testified that he was struck with enough force to knock himdown, and in addition to an injury to his mouth, which caused him soreness and difficultyeating for three or four days, he had swelling under his eye (see e.g. People v Mullings, 105AD3d 407 [1st Dept 2013], lv denied 21 NY3d 945 [2013]; People v Deas, 102 AD3d464 [1st Dept 2013], lv denied 20 NY3d 1097 [2013]; People v Mercado, 94 AD3d502 [1st Dept 2012], lv denied 19 NY3d 999 [2012]). The evidence alsosupports conclusions that defendant took the victim's phone during the attack, and thatdefendant used force for the purpose of stealing the phone.
We find, however, that the hearing court improperly denied defendant's suppressionmotion. Once the officers removed the backpack from the already handcuffed defendantand the backpack was within the officer's dominion and control and outside thegrabbable area, there was no longer any safety concern present that would have justifieda search of its contents. Nonetheless, we find that this error was harmless because theitems of defendant's clothing found in the backpack added little to the People's case andcould not have affected the verdict (see People v Crimmins, 36 NY2d 230[1975]).
By failing to make timely and specific objections, defendant failed to preserve hischallenges to the People's comments during the voir dire of the first panel of prospectivejurors, and we decline to review them in the interest of justice. As an alternative holding,we find that to [*2]the extent there were any improperquestions, the court's instructions were sufficient to prevent any prejudice.
We perceive no basis for reducing the sentence. Concur—Mazzarelli, J.P.,Renwick, Saxe, Gische and Kahn, JJ.