People v. Carmona
| Decision Date | 01 July 2020 |
| Docket Number | Ind. No. 8420/11,2014-02094 |
| Citation | 185 A.D.3d 600,126 N.Y.S.3d 705 |
| Parties | The PEOPLE, etc., Respondent, v. Vincent CARMONA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant was charged with, inter alia, attempted murder in the second degree and criminal possession of a weapon in the second degree in connection with the shooting of the complainant, which occurred outside of the complainant's apartment building during the early morning of September 18, 2011. During a New York City Police Department (hereinafter NYPD) investigation of the shooting, the complainant, while being questioned by a detective at the hospital, identified "Chulo" as having shot him. On September 20 and 30, 2011, the complainant identified the defendant as the shooter from two single-photo displays shown to him by NYPD Detective Johnson. Thereafter, on May 9, 2013, subsequent to the defendant's arrest, the complainant identified the defendant in a double-blind sequential lineup at which the defendant's counsel was present.
Prior to trial, the defendant moved, inter alia, to suppress identification testimony, and the People consented to a Wade hearing (see United States v. Wade , 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ) on the issue of the suggestiveness of the lineup procedure. After the Wade hearing, the Supreme Court determined that the lineup procedure was not unduly suggestive and denied that branch of the defendant's omnibus motion which was to suppress identification testimony. The defendant then requested a Wade hearing regarding the earlier single-photograph identifications made by the complainant. When the People responded that the complainant and the defendant were well known to each other, the defendant requested a Rodriguez hearing (see People v. Rodriguez , 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 ). The court denied the defendant's request, relying on the People's assurances that the complainant was familiar with the defendant. However, the court stated that, if it became clear at the trial that the defendant was not well known to the complainant, an "appropriate remedy" would be fashioned.
During the jury trial, after the complainant testified, the defendant renewed his request for a Rodriguez hearing. The Supreme Court denied the application. Following the trial, the defendant was convicted of attempted murder in the second degree and criminal possession of a weapon in the second degree. The defendant appeals, and we affirm.
The defendant's contention, made in his pro se supplemental brief, that the evidence was legally insufficient to establish his identity as the shooter 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 ). In any event, 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 the evidence was legally sufficient to establish his identity as the shooter beyond a reasonable doubt. The complainant's testimony was not incredible as a matter of law, since it was not "manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Guzman , 134 A.D.3d 852, 853, 20 N.Y.S.3d 612 ; see People v. Calabria , 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ), 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 ). Upon reviewing the record here, we are satisfied that the verdict of guilt 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 ). Contrary to the defendant's contention, the complainant's testimony that, following the first shot, he fell to the ground on his back, and was looking up at the shooter as the remaining shots were fired, was not undermined by medical evidence that certain shots entered from the back of the complainant's arm and legs. The complainant "never equivocated about [his] core testimony identifying [the] defendant as the person who shot [him]" ( People v. Villa , 174 A.D.3d 438, 438–439, 103 N.Y.S.3d 425 ), and the other evidence confirmed aspects of the complainant's testimony.
The Supreme Court erred in relying on the People's mere assurances of familiarity in denying the defendant's pretrial request for a Rodriguez hearing (see People v. Rodriguez , 79 N.Y.2d at 451, 583 N.Y.S.2d 814, 593 N.E.2d 268 ; People v. Coleman , 60 A.D.3d 1079, 1080, 876 N.Y.S.2d 158 ; People v. Bryan , 206 A.D.2d 434, 435, 614 N.Y.S.2d 542 ). Nevertheless, a hearing with regard to the single-photograph identifications made by the complainant soon after the shooting was ultimately unnecessary inasmuch as the complainant's trial testimony demonstrated that he was sufficiently familiar with the defendant, whom he knew and referred to by the defendant's street name, "Chulo," such that the complainant's identification of the defendant from the photo display was merely confirmatory (see People v. Locenitt , 157 A.D.3d 905, 907, 66 N.Y.S.3d 908 ; People v. Jackson , 151 A.D.3d 746, 746, 56 N.Y.S.3d 265 ; see also People v. Collins , 60 N.Y.2d 214, 469 N.Y.S.2d 65, 456 N.E.2d 1188 ). In addition to the complainant identifying the defendant from the photographs shown to him by the detective at the hospital shortly after the shooting as "Chulo," telephone conversations between the defendant and his family members recorded while the defendant was incarcerated pretrial at Rikers Island Correctional Facility confirmed that the defendant was referred to as "Chulo." Further, the complainant testified at trial that he knew the defendant from the neighborhood and had contact with him at least once a week over the previous three to four years. The complainant also identified the defendant's acquaintances who were with the defendant at the time of the shooting, which included a family member of the defendant who was present in court at the time of trial. " ‘When a crime has been committed by a ... long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person’ " ( People v. Rodriguez, 79 N.Y.2d at 450, 583 N.Y.S.2d 814, 593 N.E.2d 268 [emphasis omitted], quoting People v. Collins, 60 N.Y.2d at 219, 469 N.Y.S.2d 65, 456 N.E.2d 1188 ). Any suggestiveness of the initial photo identification procedure or the purported taint thereafter was not a concern since " ‘the protagonists are known to one another’ " ( People v. Rodriguez , 79 N.Y.2d at 449, 583 N.Y.S.2d 814, 593 N.E.2d 268 [emphasis omitted], quoting People v. Gissendanner , 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924 ; see People v. Tas , 51 N.Y.2d 915, 434 N.Y.S.2d 978, 415 N.E.2d 967 ).
The defendant's contention, made in his pro se supplemental brief, that the Supreme Court deprived him of his constitutional right to compulsory process when the court declined to adjourn the trial until Detective Johnson, who had suffered a serious and debilitating injury, was available to testify is unpreserved for appellate review. In any event, this contention is without merit since the court providently exercised its discretion in denying, as premature, the defendant's request for an adjournment of the trial to attempt to procure the detective as a witness for possible rebuttal testimony related to the complainant's testimony (see People v. Begg , 86 A.D.2d 693, 694, 446 N.Y.S.2d 514 ). Moreover, following the complainant's testimony, the defendant failed to renew this request (see People v. Cruz , 171 A.D.2d 607, 609, 567 N.Y.S.2d 677 ) and did not identify any testimony by the complainant which the detective could have rebutted.
The defendant's contention, made in his pro se supplemental brief, that portions of the recordings of his phone calls from Rikers Island Correctional Facility which the Supreme Court allowed to be admitted into evidence should have been excluded at trial since the probative value of those portions of the phone calls was substantially outweighed by the prejudice of introducing that evidence is without merit. The court providently exercised its discretion in permitting admission of only those portions of the recordings in which the defendant's family referred to the defendant as Chulo (see People v. Chrisostome , 167 A.D.3d 644, 86 N.Y.S.3d 903 ).
BARROS, J., dissents, and votes to remit the matter to the Supreme Court, Kings County, to hear and report on that branch of the defendant's omnibus motion which was to suppress identification testimony and, more particularly, whether the identification procedures were merely confirmatory in nature; and, if not determined to be merely confirmatory, whether the single-photograph identification procedures were unduly suggestive; and, if determined to be unduly suggestive, whether the taint of those procedures infected the subsequent lineup identification procedure; and to hold the appeal in abeyance pending receipt of the Supreme Court's report.
I agree with my colleagues in the majority that the Supreme Court erred in relying upon the People's mere assurances of familiarity in denying the defendant's request for a Rodriguez hearing (see People v. Rodriguez , 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 ). However, in relying solely upon the complainant's trial testimony as the basis for its refusal to order a posttrial Rodriguez hearing, the majority contravenes clear and binding precedent from the Court of Appeals (see id. ).
In the early morning of September 18, 2011, the complainant was...
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