| People v Santos |
| 2017 NY Slip Op 04600 [151 AD3d 1620] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Efrain Santos, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-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]) toassault in the second degree (§ 120.05 [2]), and vacating the sentence imposed oncount three of the indictment, and as modified the judgment is affirmed and the matter is remittedto Onondaga County Court for sentencing on the conviction of assault in the second degree.
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 twovictims were ambushed on a residential street in the City of Syracuse by three assailants. Onevictim sustained gunshot wounds to the leg and survived. The other victim was shot in the headand died. Eyewitnesses initially identified defendant and Maximino Alvarez as two of theassailants, and Pedro Romero was later identified as the third assailant. A grand jury indicteddefendant, Alvarez, and Romero on an acting-in-concert theory, and Alvarez eventually pleadedguilty and agreed to testify against defendant.
Defendant contends that his conviction of assault in the first degree as charged in count threeof the indictment is based on legally insufficient evidence because there is insufficient evidencethat the surviving victim suffered serious physical injury (see Penal Law§ 120.10 [1]). We agree. The Penal Law defines "serious physical injury" as"physical injury which creates a substantial risk of death, or which causes death or serious andprotracted disfigurement, protracted impairment of health or protracted loss or impairment of thefunction of any bodily organ" (§ 10.00 [10]). Although the jury had the opportunityto view the scars on the victim's leg caused by his gunshot wounds, "the record does not containany pictures or descriptions of what the jury saw so as to prove that these scars constitute seriousor protracted disfigurement" (People vTucker, 91 AD3d 1030, 1032 [2012], lv denied 19 NY3d 1002 [2012]; see generally People v McKinnon, 15NY3d 311, 315-316 [2010]). Furthermore, in our view, the victim's testimony that he"feel[s] pain in [his] leg" in cold weather does not constitute evidence of persistent pain so severeas to cause "protracted impairment of health" (§ 10.00 [10]; see generally People v Stewart, 18NY3d 831, 832-833 [2011]). We conclude, however, that the evidence is legally sufficient tosupport a conviction of the lesser included offense of assault in the second degree(§ 120.05 [2]), and we therefore modify the judgment accordingly.
We reject defendant's further contention that the verdict is against the weight of the evidencewith respect to the issue whether he acted in concert with Alvarez and Romero. "The jury'sresolution of credibility and identification issues is entitled to great weight" (People v Houston, 142 AD3d1397, 1398 [2016], lv denied 28 NY3d 1146 [2017] [internal quotation marksomitted]), and we see no reason to disturb the jury's resolution of those issues in this case.Viewing the evidence in light of the elements of the crimes of murder, attempted murder, andcriminal possession of a weapon, as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict with respect to those crimes is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant also contends that he was denied a fair trial when County Court allowed theprosecutor to question Alvarez about a threatening letter that Alvarez had received while he wasin prison. We reject that contention. Although it is an abuse of discretion for the court to allow awitness to testify concerning threats made by third parties relative to the witness's testimonyabsent evidence linking those threats to the defendant (see People v Jones, 21 NY3d 449, 456 [2013]; People v Myrick, 31 AD3d 668,669 [2006], lv denied 7 NY3d 927 [2006]), here, we conclude that there was no abuse ofdiscretion. Alvarez in fact testified that he did not receive any threats from defendant or from anythird party on defendant's behalf. Alvarez acknowledged receiving a letter, but he testified that hedid not take the letter to be a threat.
Defendant failed to preserve for our review his contention that he was denied a fair trialdue to prosecutorial misconduct during summation (see People v Simmons, 133 AD3d 1227, 1228 [2015]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). Contrary to defendant's further contention, we concludethat the court properly denied his request for a missing witness charge because he "failed to meethis initial burden of establishing that [the] witness would provide testimony favorable to theprosecution" (People v Butler, 140AD3d 1610, 1611 [2016], lv denied 28 NY3d 969 [2016]). Finally, the sentence isnot unduly harsh or severe. Present—Peradotto, J.P., Carni, Lindley, Troutman andScudder, JJ.