| People v Tapia |
| 2017 NY Slip Op 04391 [151 AD3d 437] |
| June 6, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Tapia, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee ofcounsel), and Orrick, Herrington & Sutcliffe LLP, New York (Daniel A. Rubens ofcounsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Jordan K. Hummel of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Miriam Best, J.), rendered February 28, 2013,convicting defendant, after a jury trial, of attempted assault in the first degree, and sentencinghim to a term of 5 years, with 3 years' postrelease supervision, affirmed.
Defendant contends that his conviction is legally insufficient and was against the weight ofthe evidence. Legal sufficiency and weight of evidence review are two standards of intermediateappellate review. Although related, "each requires a discrete analysis" (People v Bleakley,69 NY2d 490, 495 [1987]). In reviewing whether a verdict is supported by legally sufficientevidence, we must determine whether, viewing the evidence in the light most favorable to thePeople, "there is a valid line of reasoning and permissible inferences from which a rational jurycould have found the elements of the crime proved beyond a reasonable doubt" (People v Danielson, 9 NY3d 342,349 [2007] [internal quotation marks omitted]; see also People v Gordon, 23 NY3d 643, 649 [2014]; People vBleakley, 69 NY2d at 495). "This deferential standard is employed because the courts' roleon legal sufficiency review is simply to determine whether enough evidence has been presentedso that the resulting verdict was lawful" (People v Acosta, 80 NY2d 665, 672 [1993]). Ifthat is satisfied, then the verdict will be upheld on a legal sufficiency basis (People vDanielson, 9 NY3d at 349; People v Acosta, 80 NY2d at 672).
To determine whether a verdict is supported by the weight of the evidence, however, ouranalysis is not limited to that legal test. Even if all the elements and necessary findings aresupported by some credible evidence, we must examine the evidence further. "If based on all thecredible evidence a different finding would not have been unreasonable," then we must "weighthe relative probative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d at 495[internal quotation marks omitted]). "Based on the weight of the credible evidence," we mustthen decide "whether the jury was justified in finding the defendant guilty beyond a reasonabledoubt" (People v Danielson, 9 NY3d at 348). However, in performing this analysis, wemust be "careful not to substitute [ourselves] for the jury. Great deference is accorded to thefact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor.Without question the differences between what the jury does and what the appellate court does inweighing evidence are delicately nuanced, but differences there are" (People v Bleakley,69 NY2d at 495; see also People vKancharla, 23 NY3d 294, 303 [2014]; People v Romero, 7 NY3d 633, 644 [2006]).
Here, defendant was charged with attempted assault in the first degree based on the use of adangerous instrument under an acting-in-concert theory. The victim was unequivocal that he wasattacked and beaten by two people. Several witnesses also told the police two people attacked thevictim and pointed out defendant and a man named Torres as the two attackers. The policeofficers testified that they arrived on the scene while defendant was still in the process of beatingthe victim. Torres, for his part, was fidgeting with his waistband and running toward [*2]defendant and the victim. Both officers testified they observeddefendant body slam the victim in the street, drag him between parked vehicles, and punch andkick him. They lost sight of defendant and the victim for "seconds" when they first got out of thepatrol car because their vision was blocked by a van. One officer arrested Torres while the otherofficer physically pulled defendant off the victim as defendant was still kicking the victim in thehead. While it is true that no blades, razors or other sharp instruments were found either ondefendant or in the immediate area of the fight, and no one saw defendant personally cut thevictim, the officers candidly testified that they "wanted to close this investigation down" as theybelieved they had the perpetrators of the assault. They did not recover or analyze any of thebroken glass in the area or check surveillance cameras that may have captured images of the fightas part of their investigation.
Nevertheless, viewing the evidence in a light most favorable to the People, the jury couldhave drawn a reasonable inference that defendant and Torres were acting in concert and one orthe other caused the injuries to the victim's neck and face by using a sharp instrument at somepoint in the assault. Certainly, Officer Bello testified he observed defendant kicking the victim inthe head while the victim was bleeding. The medical evidence, as the dissent notes, wasunequivocal that the cuts sustained by the victim were consistent with being struck with a "sharpcutting instrument." Coupled with the fact that the victim was sure he was assaulted by twoindividuals, and the witnesses interviewed by the police at the scene identified defendant andTorres as the attackers, the jury could certainly reasonably infer that defendant and Torres wereacting in concert, and that one or the other used a "sharp cutting instrument" to cause the victim'sinjuries. Based on the weight of the credible evidence, we find no basis for disturbing the jury'sdetermination in finding defendant guilty beyond a reasonable doubt (People vDanielson, 9 NY3d at 348; People v Bleakley, 69 NY2d at 495).
The court properly denied defendant's motion to suppress a showup identification. Theprompt, on-the-scene showup was conducted as part of an unbroken chain of events and wasjustified by the interest of prompt identification (see People v Duuvon, 77 NY2d 541,545 [1991]; People v McLean, 143AD3d 538 [1st Dept 2016], lv denied 28 NY3d 1148 [2017]). The circumstances ofthe showup, as a whole, did not create a likelihood of misidentification (see Duuvon, 77NY2d at 545; People v Sanabria, 266 AD2d 41, 41 [1st Dept 1999], lv denied 94NY2d 884 [2000]).
The court also properly exercised its discretion in admitting Officer Cosgrove's grand jurytestimony as past recollection recorded. "The requirements for admission of a memorandum of apast recollection are generally stated to be that the witness observed the matter recorded, therecollection was fairly fresh when recorded or adopted, the witness can presently testify that therecord correctly represented his knowledge and recollection when made, and the witness lackssufficient present recollection of the recorded information" (People v Taylor, 80 NY2d 1,8 [1992]). Here, the People laid a proper foundation for admission of this evidence as Cosgrovetestified at trial that he had no present recollection of this incident, that his review of his grandjury minutes did not refresh his recollection, that his grand jury testimony represented hisknowledge and recollection when made, and that he testified truthfully and accurately before thegrand jury (see People v Lewis, 232 AD2d 239, 240 [1st Dept 1996], lv denied 89NY2d 865 [1996]). Moreover, the admission of this evidence did not violate the ConfrontationClause since Cosgrove testified at trial and was subject to cross-examination (People v Rahman, 137 AD3d 523,523-524 [1st Dept 2016], lv denied 28 NY3d 935 [2016]; see also People v DiTommaso, 127AD3d 11, 15 [1st Dept 2015], lv denied 25 NY3d 1162 [2015]). In any event, therewas no prejudice to defendant because it was entirely cumulative of Officer Bello's testimony(see People v Holmes, 291 AD2d 247, 248 [1st Dept 2002], lv denied 98 NY2d676 [2002]).
By raising general objections, or by failing to object or to request further relief after the courtdelivered a curative instruction, defendant failed to preserve his present challenges to theprosecutor's summation, and we decline to review them in the interest of justice. As analternative holding, we find no basis for reversal. Concur—Tom, J.P., Friedman andSweeny, JJ.
Moskowitz and Kapnick, JJ., dissent in part in a memorandum by Kapnick, J., as follows:Defendant Carlos Tapia was charged and convicted after a jury trial with attempted assault in thefirst degree based on the use of a dangerous instrument under an acting-in-concert theory.Because the People failed to prove a crucial required element of this count, namely, thatdefendant or the other alleged attacker used a sharp instrument to cut the victim, I would find thatthe evidence was not legally sufficient to support the judgment of conviction.
I agree with the majority, that in assessing the legal sufficiency of the evidence, this Court,viewing the evidence in the light most favorable to the People, "must decide whether a jury couldrationally have excluded innocent explanations of the evidence . . . and found eachelement of the crime proved beyond a reasonable doubt" (People v Reed, 22 NY3d 530, 535 [2014]). Put another way, we"must determine whether there is any valid line of reasoning and permissible inferences whichcould lead a rational person to the conclusion reached by the jury on the basis of the evidence attrial and as a matter of law satisfy the proof and burden requirements for every element of thecrime charged" (People v Bleakley, 69 NY2d 490, 495 [1987] [citations omitted andemphasis added]). However, I disagree with the majority's determination that here "the jury couldhave drawn a reasonable inference that defendant and Torres were acting in concert and one orthe other caused the injuries to the victim's neck and face by using a sharp instrument at somepoint in the assault."
The question before us on this appeal is whether the evidence sufficed to show that defendantwielded the dangerous instrument or acted in concert with another, presumably Mr. Torres, whowielded the dangerous instrument, and slashed the victim's face. As relevant here, a person isguilty of assault in the first degree when "[w]ith intent to cause serious physical injury to anotherperson, he causes such injury to such person or to a third person by means of a deadly weapon ora dangerous instrument" (Penal Law § 120.10 [1]). "A person is guilty of an attemptto commit a crime when, with intent to commit a crime, he engages in conduct which tends toeffect the commission of such crime" (Penal Law § 110.00). To establishaccessorial liability, or acting-in-concert, the People must prove beyond a reasonable doubt thatthe accused shared the "mental culpability of his companion or solicited, requested, commanded,importuned, or intentionally aided his companion" to cut the victim (Matter of Paris M.,218 AD2d 554, 556 [1st Dept 1995]; see also Penal Law § 20.00). Here,there was no proof beyond a reasonable doubt that defendant cut the victim's face and neck orshared the intent of the individual, whether Mr. Torres or someone else, who did cut the victim(see People v Rivera, 176 AD2d 510, 511 [1st Dept 1991], lv denied 79 NY2d863 [1992]).
While the victim's face was cut several times by a sharp object, there was no witness'stestimony or any other direct evidence that defendant personally cut the victim. Rather, at trial,the victim testified repeatedly that he did not see who cut him or the weapon that was used to cuthim. He further testified that he was face down on the ground at various times, indeed evencovering his face and parts of his body while he was being punched and kicked; and, therefore,that he could not see who was attacking him or who cut him. Furthermore, the victim was unableto say when, exactly, during this attack he was cut, and only realized he had been cut when he feltblood running down his face. The majority seeks to cast the victim's testimony that he "was surehe was assaulted by two individuals," as unequivocal, however, this is incorrect. In fact, and asalready noted, the victim said he could not see who assaulted him, and, moreover, he testifiedthat it "could have been . . . that several people had hit [him], because that's the way[he] felt." Additionally, the testimony by one of the arresting officers that two witnesses at thescene identified defendant and Torres as the attackers does not rise to the level of proving beyonda reasonable doubt that the two men were acting in concert or shared the requisite "mentalculpability" for the harm done to the victim.
Morever, and as noted by the majority, the police did not recover any blades, razors or othersharp instruments from either defendant or the immediate area of the fight. The police alsotestified that they did not recover or analyze any of the broken glass from a shattered beer bottleon the sidewalk in front of the bar where the incident had occurred, or the pieces of broken glassscattered on the ground where defendant had been kicking the victim when the police arrived.Indeed, at trial the People called a doctor who testified regarding the injuries that the victim [*3]sustained. The doctor stated that the cuts were not consistent withsomeone falling onto broken glass or being struck with a fist, but rather, were consistent withbeing struck with a "sharp cutting instrument," such as a "knife, a box cutter" or a "piece of glassif it . . . had the right edge." Additionally, the People failed to put forth any evidenceto suggest that defendant was aware that another attacker used a sharp object to cut the victim'sface, nor was there evidence of any connection between defendant and the other alleged attacker,Mr. Torres. Indeed, one of the arresting officers testified that he never even asked the victim whohad cut him. Moreover, there was testimony that there were approximately 15 to 20 people on thesidewalk exiting the bar at the time of the incident.
Therefore, in assessing the legal sufficiency of the evidence, I would find that the evidencefailed to establish beyond a reasonable doubt, directly or by inference circumstantially, thatdefendant carried a dangerous instrument, cut the victim's face with it, or was aware that theother attacker intended to or was cutting the victim with such an instrument (see People v Campbell, 79 AD3d624 [1st Dept 2010], lv denied 17 NY3d 793 [2011]; Matter of Paris M., 218AD2d at 556; People v Rivera, 176 AD2d at 510-512).
However, defendant's own actions supported a conviction for attempted second-degreeassault, based on the theory that, "[w]ith intent to cause serious physical injury to another person,he cause[d] such injury to such person" (Penal Law § 120.05 [1]). Accordingly, Iwould reduce the conviction to attempted assault in the second degree and reduce the sentence totime served, with 1