| People v Moise |
| 2018 NY Slip Op 06977 [165 AD3d 516] |
| October 18, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jean Moise, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgments, Supreme Court, New York County (Anthony J. Ferrara, J. at suppression hearing;Maxwell Wiley, J. at trial, plea and sentencing), rendered June 9, 2016, convicting defendant,after a jury trial, of robbery in the second degree, and, upon his plea of guilty, of burglary in thethird degree, and sentencing him, as a second felony offender, to an aggregate term of eight years,unanimously affirmed.
The court properly denied defendant's suppression motion. Although the description ofdefendant was general, and he had been described as riding a bicycle, but was no longer doing sowhen the police observed him, the police had reasonable suspicion for the stop based on acombination of factors (see e.g. People v Cook, 161 AD3d 708 [1st Dept 2018]; People v Williams, 146 AD3d 410,411 [1st Dept 2017], lv denied 29 NY3d 954 [2017]; People v Brujan, 104 AD3d 481 [1st Dept 2013], lv denied21 NY3d 1014 [2013]). The police encountered defendant in very close spatial and temporalproximity to the crime, and he behaved suspiciously by first running in apparent flight, thensuddenly entering and standing idly in a store, and then walking out and taking off a shirt thatfigured in the description of the suspect. Even if the officer's taking of the shirt from defendant'shand amounted to an improper seizure, this would be harmless, because the stop was legal andthe victim independently identified defendant during the showup.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The physical injury element of therobbery conviction was established by evidence that amply supported the conclusion that thevictim's injury resulted in substantial pain (see generally People v Chiddick, 8 NY3d 445, 447-448 [2007];People v Guidice, 83 NY2d 630, 636 [1994]).
Although otherwise admissible, a reference to a purported hospital diagnosis of a concussion,contained in the record of a pain and wellness center that treated the victim, should have beenredacted on the ground that the treating hospital had made no such diagnosis. Nevertheless, anyerror was harmless (see People v Crimmins, 36 NY2d 230 [1975]). The People made noclaim that the element of physical injury was supported in any way by proof of a concussion,instead relying on overwhelming proof of substantial pain. There was no significant probabilitythat the verdict would have been different had the redaction been made.
[*2] In light of the foregoing, there is no basis for reversal of theplea conviction.
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Gische,Mazzarelli, Webber, Kahn, JJ.