Opinion
391 KA 09-00381
08-04-2022
The PEOPLE of the State of New York, Respondent, v. Orlando GONZALEZ, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by directing that the sentences shall run concurrently with one another, and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of murder in the second degree ( Penal Law § 125.25 [1] ) and attempted murder in the second degree ( §§ 110.00, 125.25 [1] ), defendant contends that the verdict is against the weight of the evidence because the jury gave undue weight to eyewitness identifications, which are "highly error prone" (see generally People v. Boone , 30 N.Y.3d 521, 527, 69 N.Y.S.3d 215, 91 N.E.3d 1194 [2017] ). We reject that contention. Although "[m]istaken eyewitness identifications are ‘the single greatest cause of wrongful convictions in this country,’ ... ‘responsible for more ... wrongful convictions than all other causes combined’ " ( id. ), the issues of identification and credibility at issue herein " ‘were properly considered by the jury and there is no basis for disturbing its determinations’ " ( People v. Kelley , 46 A.D.3d 1329, 1330, 847 N.Y.S.2d 813 [4th Dept. 2007], lv denied 10 N.Y.3d 813, 857 N.Y.S.2d 46, 886 N.E.2d 811 [2008] ; see People v. Jones , 193 A.D.3d 1410, 1411, 147 N.Y.S.3d 280 [4th Dept. 2021], lv denied 37 N.Y.3d 972, 150 N.Y.S.3d 703, 172 N.E.3d 815 [2021]). This is not a case involving "an uncorroborated eyewitness identification of dubious reliability" ( People v. Miller , 191 A.D.3d 111, 116, 134 N.Y.S.3d 605 [4th Dept. 2020] ). Rather, three of the four witnesses who identified defendant as the shooter were familiar with him from the neighborhood. One of them, the surviving victim, frequented the same multifamily building where defendant's father once lived and in front of which the shooting occurred. As a result, the surviving victim frequently saw defendant at the building. Moreover, that surviving victim recognized defendant from an altercation with defendant and others that occurred a few weeks before the shooting.
To the extent that defendant contends that an instruction on cross-racial identification was warranted (see Boone , 30 N.Y.3d at 525-526, 69 N.Y.S.3d 215, 91 N.E.3d 1194 ), he failed to request such an instruction and, as a result, that contention is not preserved for our review (see People v. Dingle , 147 A.D.3d 1080, 1080-1081, 47 N.Y.S.3d 457 [2d Dept. 2017], lv denied 29 N.Y.3d 1078, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017], 31 N.Y.3d 1146, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ; see also People v. Williams , 172 A.D.3d 586, 587, 101 N.Y.S.3d 34 [1st Dept. 2019], lv denied 34 N.Y.3d 940, 109 N.Y.S.3d 696, 133 N.E.3d 396 [2019] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we thus conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Defendant further contends that the verdict was tainted by a coercive deadlock charge. Inasmuch as defendant failed to raise any objection to the charge, his contention is not preserved for our review (see People v. Al-Kanani , 33 N.Y.2d 260, 265, 351 N.Y.S.2d 969, 307 N.E.2d 43 [1973], cert denied 417 U.S. 916, 94 S.Ct. 2619, 41 L.Ed.2d 220 [1974] ; People v. Rumph , 93 A.D.3d 1346, 1348, 940 N.Y.S.2d 769 [4th Dept. 2012], lv denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 [2012] ; People v. Roman , 85 A.D.3d 1630, 1631, 925 N.Y.S.2d 310 [4th Dept. 2011], lv denied 17 N.Y.3d 821, 929 N.Y.S.2d 810, 954 N.E.2d 101 [2011] ). In any event, the contention lacks merit. The fact that County Court discussed the potential of another jury selection and a retrial "in the event the jury could not reach a verdict did not render the Allen charge coercive. Those concepts appear at least twice in the standard deadlock charge in the Criminal Jury Instructions" ( People v. Colon , 173 A.D.3d 1704, 1706, 103 N.Y.S.3d 215 [4th Dept. 2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 744, 133 N.E.3d 450 [2019], citing CJI2d[NY] Deadlock Charge; see People v. Ford , 78 N.Y.2d 878, 880, 573 N.Y.S.2d 442, 577 N.E.2d 1034 [1991] ; People v. Cowen , 249 A.D.2d 560, 560, 672 N.Y.S.2d 138 [2d Dept. 1998], lv denied 92 N.Y.2d 895, 680 N.Y.S.2d 59, 702 N.E.2d 844 [1998] ; cf. People v. Aponte , 2 N.Y.3d 304, 306-308, 778 N.Y.S.2d 447, 810 N.E.2d 899 [2004] ; People v. Nunez , 256 A.D.2d 192, 193, 683 N.Y.S.2d 231 [1st Dept. 1998], lv denied 93 N.Y.2d 975, 695 N.Y.S.2d 61, 716 N.E.2d 1106 [1999] ).
We agree with defendant, however, that the aggregate sentence of 45 years to life is unduly harsh and severe. Under the circumstances of this case, including the fact that defendant was 19 years old at the time of the incident and had only a few convictions for minor drug possession offenses on his record, we modify the judgment as a matter of discretion in the interest of justice by directing that the sentences imposed on both counts run concurrently (see People v. Brewer , 196 A.D.3d 1172, 1175, 151 N.Y.S.3d 784 [4th Dept. 2021], lv denied 37 N.Y.3d 1095, 156 N.Y.S.3d 782, 178 N.E.3d 429 [2021], cert denied ––– U.S. ––––, 142 S.Ct. 1684, 212 L.Ed.2d 587 [2022] ; see generally CPL 470.15 [6] [b] ).