People v. Calas

• Decision Date: 23 December 2015
• Parties: The PEOPLE, etc., respondent, v. Gregory CALAS, appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 1043

22 N.Y.S.3d 217

The PEOPLE, etc., respondent,

v.Gregory CALAS, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 23, 2015.

Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered February 13, 2013, convicting him of manslaughter in the first degree, attempted murder in the second degree, assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction of assault in the first degree to attempted assault in the first degree, and by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the conviction of attempted assault in the first degree.

The defendant's contention that the evidence was legally insufficient to establish his identity as one of the perpetrators is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Pitre, 108 A.D.3d 643, 643, 968 N.Y.S.2d 585 ). In any event, 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 one of the perpetrators beyond a reasonable doubt. Further, contrary to the defendant's contention, viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish his guilt of attempted murder in the second degree under count 3 of the indictment and criminal possession of a weapon in the second degree under count 11 of the indictment, based upon an acting-in-concert theory, beyond a reasonable doubt (see People v. Scott, 25 N.Y.3d 1107, 14 N.Y.S.3d 308, 35 N.E.3d 476 ; Matter of Juan J., 81 N.Y.2d 739, 593 N.Y.S.2d 768, 609 N.E.2d 121 ; People v. Allah, 71 N.Y.2d 830, 832, 527 N.Y.S.2d 731, 522 N.E.2d 1029 ; Matter of Tatiana N., 73 A.D.3d 186, 190–191, 899 N.Y.S.2d 21 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 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 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 jury's verdict as to those crimes 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 ).

The defendant also failed to preserve for appellate review his contention that the evidence was legally insufficient to prove the " serious physical injury" element of assault in the first degree (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d at 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). However, upon reviewing this contention in the interest of justice (see CPL 470.15[3][c] ; People v. Ragguete, 120 A.D.3d 717, 991 N.Y.S.2d 131 ; People v. Mazariego, 117 A.D.3d 1082, 986 N.Y.S.2d 235 ), we find that the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), was not legally sufficient to establish the defendant's guilt of assault in the first degree. The People failed to demonstrate beyond a reasonable doubt that the victim's gunshot wound

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" (Penal Law § 10.00[10] ; see People v. Nimmons, 95 A.D.3d 1360, 1360–1361, 945 N.Y.S.2d 358 ; People v. Tucker, 91 A.D.3d 1030, 1031–1032, 936 N.Y.S.2d 386 ; People v. Horton, 9 A.D.3d 503, 504–505, 780 N.Y.S.2d 654 ). Nevertheless, the evidence presented at trial established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came "dangerously near" to committing the completed crime (People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694 [internal quotation marks omitted]; see Penal Law §§ 110.00, 120.10[1] ; People v. Ekwegbalu, 131 A.D.3d 982, 15 N.Y.S.3d 847 ; People v. Ragguete, 120 A.D.3d at 717, 991 N.Y.S.2d 131 ; People v. Gray, 30 A.D.3d 771, 773, 816 N.Y.S.2d 609 ). Accordingly, we modify the judgment by reducing the defendant's conviction of assault in the first degree to attempted assault in the first degree, and we remit the matter to the Supreme Court, Queens County, for sentencing on the conviction of attempted assault in the first degree (see People v. Ragguete, 120 A.D.3d at 718, 991 N.Y.S.2d 131 ; People v. Tucker, 91 A.D.3d at 1032, 936 N.Y.S.2d 386 ; People v. Serrano, 74 A.D.3d 1104, 1106, 904 N.Y.S.2d 711 ).

The defendant's Batson challenge (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) was properly denied, as he failed to make the requisite prima facie showing of discrimination. "It is incumbent upon a party making a Batson challenge to articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed" (People v. Cuesta, 103 A.D.3d 913, 914, 959 N.Y.S.2d 744 ; see People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709 ; People v. Valdez–Cruz, 99 A.D.3d 738, 738, 951 N.Y.S.2d 582 ). On this record, the defendant failed to make a prima facie showing of discrimination based on the number of peremptory challenges exercised by the...