People v. Adorno
| Decision Date | 19 October 2022 |
| Docket Number | 2019–10659,Ind. No. 1796/18 |
| Citation | 210 A.D.3d 113,177 N.Y.S.3d 260 |
| Parties | The PEOPLE, etc., respondent, v. Angelo ADORNO, appellant. |
| Court | New York Supreme Court — Appellate Division |
Twyla Carter, New York, NY (David Crow and Kramer Levin Naftalis & Frankel, LLP [Aaron L. Webman and Thomas M. Twitchell ], of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Jordan I. LoCascio of counsel), for respondent.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, SHERI S. ROMAN, PAUL WOOTEN, JJ.
DILLON, J.P.
This appeal provides our Court with an opportunity to highlight the need for attorneys at trial to interpose objections that are prompt, timely, and specific.
The facts underlying this appeal are, for the most part, not in dispute. The defendant was charged, under Queens County Indictment No. 1796/18, with robbery in the first degree ( Penal Law § 160.15[3] ), robbery in the second degree (id. § 160.10[2][a]), criminal possession of stolen property in the fifth degree (id. § 165.40), and criminal possession of a weapon in the fourth degree (id. § 265.01[2]). The charges arose out of an incident that occurred on August 4, 2018, at a Key Food store in Queens. According to the evidence, the defendant was observed that day secreting four packages of steak into his backpack, and leaving the store after paying for bread but not paying for the merchandise in his backpack. The theft was videotaped by the store.
Security guard Mustafa Elmwafy was dispatched by a supervisor to follow the defendant to the parking lot and confirm the theft. In the parking lot, the defendant refused to return the steaks, pushed Elmwafy's chest, and told Elmwafy to "go away." An altercation ensued between the defendant, Elmwafy, and two other store employees who came to the parking lot. During the ongoing altercation, the defendant pricked Elmwafy with a hypodermic needle that he had on his person, which drew blood in the area of Elmwafy's torso and shirt. Elmwafy yelled, "he stung me, he stung me." Elmwafy's supervisor, Ashraf Najjar, who had arrived at the scene of the altercation, observed the needle in the defendant's hand while Elmwafy "was holding his hand trying to prevent him [the defendant] from stabbing him [Elmwafy]," and later observed the blood at Elmwafy's puncture hole. According to Najjar, the defendant was brought to the ground and the needle taken from his hand and kicked away. The defendant was held pending the arrival of police, while physically struggling, resisting, cursing, and screaming.
Elmwafy, who was 19 years old at the time, was taken to Wyckoff Hospital where he was treated for two to three hours, given some pills, and prescribed antiviral medicine which he needed to take twice a day for a week. He also missed one week of work.
At jury selection, one prospective juror, who was not ultimately selected to serve on the jury, disclosed during voir dire that an "ex" was a police officer who was stabbed with a needle in the line of duty by a "crackhead" and thereafter contracted HIV/AIDS, which ultimately ended their relationship.
The defendant did not testify on his own behalf or present other evidence.
At the conclusion of the evidentiary portion of the trial, the Supreme Court determined that it would not charge the jury on the elements of robbery in the second degree, as the evidence failed to establish the necessary element of "physical injury" as defined by Penal Law § 10.00(9). The defendant conceded the commission of a petit larceny (id. § 155.25).
During summation, defense counsel argued that there was no unbiased evidence that Elmwafy was stuck by a needle wielded by the defendant, and that Elmwafy was not pricked by the needle in the way that he described. The parking lot video that was in evidence did not depict anything specific to the needle, as a crucial segment of the altercation was obscured by the presence of a van.
A portion of the prosecutor's summation was responsive to that argument, with the prosecutor maintaining that the testimonies of Elmwafy and Najjar about the circumstances of the needle were credible. In discussing Elmwafy being stuck with a needle, the prosecutor argued that a hypodermic needle can be dangerous. Indeed, the use of a "dangerous instrument" is an element of both robbery in the first degree and criminal possession of a weapon in the fourth degree, which were among the charges that would be submitted to the jury ( Penal Law §§ 160.15[3] ; 265.01[2]).
The prosecutor specifically remarked that a hypodermic needle is "designed to ... puncture the human skin and inject or withdraw, but often inject something into the body." There was no objection from the defense. The prosecutor uttered four more sentences about the nature of needles, without any objection from the defense. The prosecutor then said of any needle that "[i]t can put stuff that can kill you." There was no objection from the defense. "It can put stuff in there that injures you." There was no objection from the defense. "We were all here in jury selection when the individual talked about what happened to his partner which is the needle stick." There was no objection from the defense. "It is capable of causing serious physical injury, death, serious bodily harm, depending on how it's used." There was no objection from the defense. "And if you take this and you just stick someone with it that makes it a dangerous instrument." There was still no objection from the defense. "It's important, just like you can take I submit any object, depending on how it's used, a car, a baseball bat for hitting balls, you take it to someone's body, turns into a dangerous instrument." Again, defense counsel did not object.
At that juncture, defense counsel objected "to all of this." The Supreme Court sustained the objection by striking the prosecutor's last statement regarding "dangerous instrument," explaining that there was "no evidence to support any type of dangerous instrument." In response, defense counsel reiterated by saying, "No evidence." The prosecutor retorted that "It's about how it could be used," prompting defense counsel to state, The court explained that the objection had already been sustained and that "[w]e're on to the next thing."
After the jury was charged and deliberating, defense counsel raised the issue of the Supreme Court's handling of the above-referenced objection, arguing that the prosecutor's remarks about the needle appealed to the emotion and sympathy of the jury. The court noted that counsel had not objected to those remarks. Tellingly, defense counsel stated that the "defense eventually did object to that whole portion of his summation" (emphasis added). The court disagreed, stating that "you were silent in the first portion of that, so you allowed one portion of it and then you objected later." The court asked rhetorically, "What part are you objecting to that he said?" and further noted to counsel that
The defendant was convicted of the class B violent felony of robbery in the first degree ( Penal Law § 160.15[3] ) and the class A misdemeanor of criminal possession of stolen property in the fifth degree (id. § 165.40). He was acquitted of the charge of criminal possession of a weapon in the fourth degree (id. § 265.01[2]).
The defendant faced a sentence on the robbery conviction of a determinate term of imprisonment of between 5 and 25 years (see id. § 70.02[1][a], [3][a]). The defendant's criminal history consisted of 3 prior felony convictions, 16 misdemeanor convictions, 5 parole revocations, and 1 revocation of probation. He was not cooperative with the Department of Probation during its efforts to prepare a presentence report. The defendant was sentenced to a determinate term of imprisonment of seven years, to be followed by a period of postrelease supervision of five years on the conviction of robbery in the first degree, and a definite term of imprisonment of one year on the conviction of criminal possession of stolen property in the fifth degree, to run concurrently with each other. The defendant's conviction of criminal possession of stolen property in the fifth degree and the sentence imposed thereon is not raised as an issue on appeal.
The defendant argues on appeal that the prosecutor's reference to the content of a prospective juror's voir dire, which was not in evidence, was misconduct, as it was an egregious appeal to emotion and sympathy designed to inflame the jury and prejudice the defense.
The objection of defense counsel most relevant to this appeal was to "all of this," which was interposed only after the prosecutor likened a hypodermic needle to a dangerous instrument. The objection, as interposed, suffers from a number of problems in failing to preserve the issues now raised on appeal. First, the objection was vague and ambiguous. Second, it was untimely. Third, its language was general and nonspecific. The preservation rules discussed below, requiring that objections be timely and specific rather than untimely and general, are basic, well-understood, and time-tested concepts, which should prompt no dispute in their application to this appellate record.
The defendant's objection was vague and ambiguous, as it is necessarily unclear how far back into the prosecutor's summation "all of this" might conceivably go (see People v. Jones, 284 A.D.2d 46, 48, 728 N.Y.S.2d 417, affd 99 N.Y.2d...
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