People v. Coleman

• Decision Date: 01 March 2017
• Citation: 148 A.D.3d 717,48 N.Y.S.3d 478
• Parties: The PEOPLE, etc., respondent, v. Donnell COLEMAN, appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 717
48 N.Y.S.3d 478

The PEOPLE, etc., respondent,
v.
Donnell COLEMAN, appellant.

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

March 1, 2017.

48 N.Y.S.3d 479

Lynn W.L. Fahey, New York, NY (Nao Terai of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Merri Turk Lasky of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, HECTOR D. LaSALLE and BETSY BARROS, JJ.

148 A.D.3d 717

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered July 11, 2013, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing as a second felony offender.

The defendant preserved his challenge to the legal sufficiency of the evidence of the "serious physical injury" and "caus[ation]" elements of gang assault in the first degree (Penal Law § 120.07 ), but failed to preserve his challenge to the legal sufficiency of the "foreseeability" element of gang assault in the first degree (see CPL 470.05[2] ). 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 guilt of gang assault in the first degree. 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, 348, 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

48 N.Y.S.3d 480

People v. Mateo, 2 N.Y.3d 383, 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 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 verdict was neither repugnant (see People v. Goodfriend, 64 N.Y.2d 695, 485 N.Y.S.2d 519, 474 N.E.2d 1187 ; People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617 ) nor factually inconsistent (see People v. Muhammad, 17 N.Y.3d 532, 935 N.Y.S.2d 526, 959 N.E.2d 463 ; People v. Horne, 97 N.Y.2d 404, 740 N.Y.S.2d 675, 767 N.E.2d 132 ; People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617 ).

148 A.D.3d 718

The Supreme Court providently exercised its discretion in admitting an autopsy photograph of the victim's skull with the scalp removed. The challenged photograph was neither excessively gruesome nor introduced solely for the purpose of arousing the jurors' passions and prejudicing the defendant (see People v. Fletcher, 84 A.D.3d 1265, 923 N.Y.S.2d 858 ; People v. Rivera, 74 A.D.3d 993, 904 N.Y.S.2d 449 ; People v. Prowse, 60 A.D.3d 703, 875 N.Y.S.2d 121 ; People v. Reyes, 49 A.D.3d 565, 855 N.Y.S.2d 160 ). Rather, the photograph was relevant to help illustrate and corroborate the testimony of the medical examiner regarding the cause of death (see People v. Fletcher, 84 A.D.3d 1265, 923 N.Y.S.2d 858 ; People v. Prowse, 60 A.D.3d 703, 875 N.Y.S.2d...