Opinion
2014-09-10
The PEOPLE, etc., respondent, v. Tarik PHILIPS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant, and appellant pro se. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and HECTOR D. LASALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered January 3, 2006, convicting him of murder in the second degree, attempted murder in the second degree, assault in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement authorities.
ORDERED that the judgment is modified, on the law, by reducing the defendant's conviction of assault in the first degree under count three of the indictment to assault in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and assault in the first degree under count four of the indictment. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt on those counts was 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).
However, we agree with the defendant that the evidence was not legally sufficient to establish his guilt of assault in the first degree under count three of the indictment because it did not demonstrate that the complainant Spraus sustained a “serious physical injury” (Penal Law §§ 10.00 [10], 120.10[3]; see People v. Brown, 100 A.D.3d 1035, 952 N.Y.S.2d 828; People v. Adames, 52 A.D.3d 617, 618, 859 N.Y.S.2d 725; People v. Gray, 30 A.D.3d 771, 772–773, 816 N.Y.S.2d 609; People v. Phillip, 279 A.D.2d 802, 803, 718 N.Y.S.2d 727). Spraus's testimony and the medical records submitted into evidence were insufficient to prove that the injuries Spraus suffered created a substantial risk of death, or caused “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” within the meaning of Penal Law § 10.00(10) ( see People v. Mazariego, 117 A.D.3d 1082, 986 N.Y.S.2d 235; People v. Nimmons, 95 A.D.3d 1360, 945 N.Y.S.2d 358, People v. Tucker, 91 A.D.3d 1030, 1031–1032, 936 N.Y.S.2d 386). Nevertheless, the evidence was legally sufficient to establish the defendant's guilt of the lesser-included offense of assault in the third degree ( seePenal Law § 120.00[2] ). Accordingly, we reduce the conviction of assault in the first degree under count three of the indictment to a conviction of assault in the third degree, and vacate the sentence imposed under count three of the indictment. Although the defendant has already served the maximum sentence that could be imposed for assault in the third degree ( seePenal Law § 70.15[1] ), we nevertheless remit the matter to the Supreme Court, Kings County, for the imposition of an authorized sentence for that offense ( see People v. Mighty, 109 A.D.3d 841, 971 N.Y.S.2d 54; People v. Sutherland, 102 A.D.3d 897, 961 N.Y.S.2d 198; People v. Rumley, 102 A.D.3d 894, 958 N.Y.S.2d 200).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in granting the People's application to reopen their case to admit certain evidence concerning a witness's ability to describe the defendant shortly after the shooting in order to rectify a misleading impression created by defense counsel's summation ( see People v. Thompson, 81 A.D.3d 670, 671–672, 916 N.Y.S.2d 151, affd. 22 N.Y.3d 687, 985 N.Y.S.2d 428, 8 N.E.3d 803; People v. Loney, 43 A.D.3d 726, 841 N.Y.S.2d 444; People v. De Los Angeles, 270 A.D.2d 196, 199, 707 N.Y.S.2d 16, affd. sub nom. People v. Collins, 96 N.Y.2d 837, 729 N.Y.S.2d 433, 754 N.E.2d 192; see also People v. Massie, 2 N.Y.3d 179, 185, 777 N.Y.S.2d 794, 809 N.E.2d 1102).
The defendant's contention that certain remarks made by the prosecutor during summation deprived him of a fair trial is largely unpreserved for appellate review, since he either failed to object to the remarks at issue, made only a general objection, or failed to request further curative relief when his objections were sustained, and he failed to make a timely motion for a mistrial on the specific grounds he now asserts on appeal ( seeCPL 470.05 [2]; People v. Martin, 116 A.D.3d 981, 983 N.Y.S.2d 813; People v. Jorgensen, 113 A.D.3d 793, 794, 978 N.Y.S.2d 361; People v. Hoke, 111 A.D.3d 959, 976 N.Y.S.2d 137). In any event, the challenged portions of the prosecutor's summation were fair comment upon the evidence, were responsive to the defense counsel's summation, were within the bounds of rhetorical comment, or do not otherwise require reversal ( see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Martin, 116 A.D.3d 981, 983 N.Y.S.2d 813; People v. Herb, 110 A.D.3d 829, 831, 972 N.Y.S.2d 668). To the extent that any prejudicial effect may have resulted from certain remarks, it was ameliorated by the trial court's immediate admonitions ( see People v. Martinez, 58 A.D.3d 754, 872 N.Y.S.2d 159; People v. White, 5 A.D.3d 511, 772 N.Y.S.2d 601).
The sentence imposed with respect to the remaining crimes of which the defendant was convicted was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's contention, in his pro se supplemental brief, that his statements should have been suppressed because they were obtained in violation of his right to counsel is based on matter dehors the record and, thus, cannot be reviewed on direct appeal ( see People v. Lee, 105 A.D.3d 870, 871, 962 N.Y.S.2d 696).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.