Opinion
2018–06406 Ind. No. 9840/16
10-13-2021
The PEOPLE, etc., respondent, v. Jose MARTINEZ, appellant.
Patricia Pazner, New York, N.Y. (Martin B. Sawyer of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Denise Pavlides of counsel), for respondent.
Patricia Pazner, New York, N.Y. (Martin B. Sawyer of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Denise Pavlides of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., BETSY BARROS, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered February 7, 2018, convicting him of attempted murder in the second degree, attempted assault in the first degree, criminal possession of a weapon in the second degree (two counts), assault in the second degree, and attempted assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the People's contention, the defendant's claim that the evidence was legally insufficient to establish his identity as the shooter is preserved for appellate review (see CPL 470.05[2] ). However, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's identity as the shooter to support his convictions beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the grand jury proceeding was impaired by the false testimony of the complainant regarding the identity of the shooter is without merit. The defendant failed to establish that the complainant's grand jury testimony was perjured (see People v. Genyard, 84 A.D.3d 1398, 1399, 923 N.Y.S.2d 883 ; cf. People v. Pelchat, 62 N.Y.2d 97, 476 N.Y.S.2d 79, 464 N.E.2d 447 ).
As the People correctly concede, the defendant's federal constitutional right against unreasonable searches and seizures (see U.S. Const Amend IV ) was violated when the People obtained his historical cell site location information (hereinafter CSLI) without first obtaining a warrant (see Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 2221, 201 L.Ed.2d 507 ); People v. Taylor, 172 A.D.3d 1110, 98 N.Y.S.3d 456 ). Nevertheless, any error in the admission of the defendant's CSLI records was harmless, because the evidence of the defendant's guilt was overwhelming, and there was no reasonable possibility that the error might have contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Taylor, 172 A.D.3d at 1111, 98 N.Y.S.3d 456 ).
The defendant's contention relating to the People's summation comments is unpreserved for appellate review and, in any event, without merit. The defendant's remaining contentions do not require reversal.
CHAMBERS, J.P., BARROS, WOOTEN and DOWLING, JJ., concur.