| People v Romero |
| 2017 NY Slip Op 01069 [147 AD3d 1490] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Romero, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.), rendered June27, 2014. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, attempted murder in the second degree, assault in the first degree and criminal possessionof a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the conviction of assault in the first degree (Penal Law § 120.10 [1])under count three of the indictment to assault in the second degree (§ 120.05 [2]),and the matter is remitted to Onondaga County Court for sentencing on that crime.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]), attempted murder in thesecond degree (§§ 110.00, 125.25 [1]), assault in the first degree(§ 120.10 [1]), and two counts of criminal possession of a weapon in the seconddegree (§ 265.03 [1] [b]; [3]). This case arose from an incident in which three menambushed two victims on a residential street in the City of Syracuse. One victim suffered gunshotwounds to the leg and survived. The other victim suffered a gunshot wound to the head and died.Eyewitnesses initially identified Efrain Santos, Maximino Alvarez, and a third suspect as theassailants, but the third suspect had an alibi. Eyewitnesses later identified defendant as the thirdassailant. A grand jury indicted Santos, Alvarez, and defendant on an acting-in-concert theory,and Alvarez eventually pleaded guilty and agreed to testify against defendant.
We agree with defendant that his conviction of assault in the first degree as charged in countthree of the indictment is based on legally insufficient evidence because there is insufficientevidence that the surviving victim suffered serious physical injury (see Penal Law§ 120.10 [1]), i.e., "physical injury which creates a substantial risk of death, orwhich causes death or serious and protracted disfigurement, protracted impairment of health orprotracted loss or impairment of the function of any bodily organ" (§ 10.00 [10]).Although the victim displayed to the jury scars on his leg caused by his gunshot wounds, "therecord does not contain any pictures or descriptions of what the jury saw so as to prove that thesescars constitute serious or protracted disfigurement" (People v Tucker, 91 AD3d 1030, 1032 [2012], lv denied 19NY3d 1002 [2012]; see generally Peoplev McKinnon, 15 NY3d 311, 315-316 [2010]). Furthermore, although the victim testifiedthat he "feel[s] pain in [his] leg" in cold weather, we conclude that such testimony does notconstitute evidence of persistent pain so severe as to cause "protracted impairment of health"(§ 10.00 [10]; see generallyPeople v Stewart, 18 NY3d 831, 832-833 [2011]). We further conclude, however, thatthe evidence is legally sufficient to support a conviction of the lesser included offense of assaultin the second degree (Penal Law § 120.05 [2]), and we therefore modify thejudgment accordingly. Contrary to defendant's further contention, viewing the evidence in lightof the elements of the remaining crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict with respect to those crimes is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])."The jury's resolution of credibility and identification issues is entitled to great weight" (People v Houston, 142 AD3d1397, 1398 [2016] [internal quotation marks omitted]), and we decline to disturb the jury'sdetermination of those issues.
Defendant failed to preserve for our review his challenge to the admission in evidence of apurported threatening letter that Alvarez received in prison. Defendant did not object to theadmission of the letter on the specific ground he now raises on appeal (see People v Clark, 90 AD3d1576, 1577 [2011], lv denied 18 NY3d 992 [2012]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant also failed to preserve for our review his challenge to CountyCourt's preclusion ruling relating to the CPL 710.30 notice (see People v Robinson, 28 AD3d 1126, 1129 [2006], lvdenied 7 NY3d 794 [2006]). In any event, we conclude that the court's ruling was proper(see generally People v Lopez, 84 NY2d 425, 428 [1994]).
Contrary to defendant's further contention, we conclude that the court properly denied hisrequest for a missing witness charge because he "failed to meet his initial burden of establishingthat [the] witness would provide testimony favorable to the prosecution" (People v Butler, 140 AD3d 1610,1611 [2016], lv denied 28 NY3d 969 [2016]). Finally, the sentence is not unduly harsh orsevere. Present—Centra, J.P., Lindley, NeMoyer, Curran and Troutman, JJ.