People v. Tapia

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 sentencing him 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 of the evidence. Legal sufficiency and weight of evidence review are two standards of intermediate appellate 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 sufficient evidence, we must determine whether, viewing the evidence in the light most favorable to the People, “there is a valid line of reasoning and permissible inferences from which a rational jury could 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 v Bleakley, 69 NY2d at 495). “This deferential standard is employed because the courts’ role on legal sufficiency review is simply to determine whether enough evidence has been presented so that the resulting verdict was lawful” (People v Acosta, 80 NY2d 665, 672 [1993]). If that is satisfied, then the verdict will be upheld on a legal sufficiency basis (People v Danielson, 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, our analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, we must examine the evidence further. “If based on all the credible evidence a different finding would not have been unreasonable,” then we must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences 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 must then decide “whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (People v Danielson, 9 NY3d at 348). However, in performing this analysis, we must be “careful not to substitute [ourselves] for the jury. Great deference is accorded to the fact-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 in weighing evidence are delicately nuanced, but differences there are” (People v Bleakley, 69 NY2d at 495; see also People v Kancharla, 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 a dangerous instrument under an acting-in-concert theory. The victim was unequivocal that he was attacked and beaten by two people. Several witnesses also told the police two people attacked the victim and pointed out defendant and a man named Torres as the two attackers. The police officers testified that they arrived on the scene while defendant was still in the process of beating the victim. Torres, for his part, was fidgeting with his waistband and running toward defendant and the victim. Both officers testified they observed defendant body slam the victim in the street, drag him between parked vehicles, and punch and kick him. They lost sight of defendant and the victim for “seconds” when they first got out of the patrol car because their vision was blocked by a van. One officer arrested Torres while the other officer physically pulled defendant off the victim as defendant was still kicking the victim in the head. While it is true that no blades, razors or other sharp instruments were found either on defendant or in the immediate area of the fight, and no one saw defendant personally cut the victim, the officers candidly testified that they “wanted to close this investigation down” as they believed they had the perpetrators of the assault. They did not recover or analyze any of the broken glass in the area or check surveillance cameras that may have captured images of the fight as part of their investigation.

Nevertheless, viewing the evidence in a light most favorable to the People, the jury could have drawn a reasonable inference that defendant and Torres were acting in concert and one or the other caused the injuries to the victim’s neck and face by using a sharp instrument at some point in the assault. Certainly, Officer Bello testified he observed defendant kicking the victim in the head while the victim was bleeding. The medical evidence, as the dissent notes, was unequivocal that the cuts sustained by the victim were consistent with being struck with a “sharp cutting instrument.” Coupled with the fact that the victim was sure he was assaulted by two individuals, and the witnesses interviewed by the police at the scene identified defendant and Torres as the attackers, the jury could certainly reasonably infer that defendant and Torres were acting in concert, and that one or the other used a “sharp cutting instrument” to cause the victim’s injuries. Based on the weight of the credible evidence, we find no basis for disturbing the jury’s determination in finding defendant guilty beyond a reasonable doubt (People v Danielson, 9 NY3d at 348; People v Bleakley, 69 NY2d at 495).

The court properly denied defendant’s motion to suppress a showup identification. The prompt, on-the-scene showup was conducted as part of an unbroken chain of events and was justified by the interest of prompt identification (see People v Duuvon, 77 NY2d 541, 545 [1991]; People v McLean, 143 AD3d 538 [1st Dept 2016], lv denied 28 NY3d 1148 [2017]). The circumstances of the showup, as a whole, did not create a likelihood of misidentification (see Duuvon, 77 NY2d at 545; People v Sanabria, 266 AD2d 41, 41 [1st Dept 1999], lv denied 94 NY2d 884 [2000]).

The court also properly exercised its discretion in admitting Officer Cosgrove’s grand jury testimony as past recollection recorded. “The requirements for admission of a memorandum of a past recollection are generally stated to be that the witness observed the matter recorded, the recollection was fairly fresh when recorded or adopted, the witness can presently testify that the record correctly represented his knowledge and recollection when made, and the witness lacks sufficient 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 Cosgrove testified at trial that he had no present recollection of this incident, that his review of his grand jury minutes did not refresh his recollection, that his grand jury testimony represented his knowledge and recollection when made, and that he testified truthfully and accurately before the grand jury (see People v Lewis, 232 AD2d 239, 240 [1st Dept 1996], lv denied 89 NY2d 865 [1996]). Moreover, the admission of this evidence did not violate the Confrontation Clause 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, 127 AD3d 11, 15 [1st Dept 2015], lv denied 25 NY3d 1162 [2015]). In any event, there was 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 NY2d 676 [2002]).

By raising general objections, or by failing to object or to request further relief after the court delivered a curative instruction, defendant failed to preserve his present challenges to the prosecutor’s summation, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.

Concur—Tom, J.P., Friedman and Sweeny, JJ.