People v. Cordes

• Decision Date: 16 March 2010
• Citation: 897 N.Y.S.2d 479,71 A.D.3d 912
• Parties: The PEOPLE, etc., respondent, v. Darrell CORDES, appellant.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 479

71 A.D.3d 912

The PEOPLE, etc., respondent,

v.Darrell CORDES, appellant.

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

March 16, 2010.

Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Daniel Bresnahan of counsel), for respondent.

FRED T. SANTUCCI, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered July 3, 2007, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant was charged with, as relevant here, robbery in the first degree. At trial, the alleged victim testified that after the defendant surreptitiously removed her pocketbook from her unlocked vehicle and she demanded its return, he simultaneously began to unzip his jacket while threatening to stab her to death. The victim testified she never saw a weapon in the defendant's possession although she believed he was reaching for a knife and the defendant fled when she screamed. The next day, she identified the defendant in a lineup and this identification testimony was the only evidence that linked the defendant to the crime at the trial where the defendant was convicted of robbery in the first degree.

The hearing court properly declined to suppress lineup identification evidence since "the defendant's physical characteristics were sufficiently similar to theother participants in the lineup as to negate any likelihood that the defendant would be singled out for identification" ( People v. Jean-Baptiste, 57 A.D.3d 566, 567, 868 N.Y.S.2d 724; see People v. Peterkin, 27 A.D.3d 666, 667, 815 N.Y.S.2d 103) and his attire "was not so unduly suggestive of his identity as to create a substantial likelihood of irreparable misidentification because there is no evidence that [his] clothing figured prominently in the complainant's description of the perpetrator" ( People v. Torres, 309 A.D.2d 823, 824, 765 N.Y.S.2d 650; see People v. Jean-Baptiste, 57 A.D.3d at 567, 868 N.Y.S.2d 724).

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 robbery in the first degree when considered in light of the trialcourt's charge as given without exception ( see People v. Sala, 95 N.Y.2d 254, 260, 716 N.Y.S.2d 361, 739 N.E.2d 727). There was "legally sufficient evidence to establish that [the] defendant 'used or threatened the immediate use' of a knife in the course of the robbery, as the trial court charged" ( People v. Ford, 11 N.Y.3d 875, 878, 874 N.Y.S.2d 859, 903 N.E.2d 256). Moreover, the evidence was legally sufficient to establish that the defendant threatened to use physical force for the purpose of "[p]reventing or overcoming resistance to the ... retention [of the purse] immediately after the taking" (Penal Law § 160.00[1]; see People v. Carr-El, 287 A.D.2d 731, 732, 732 N.Y.S.2d 256, affd. 99 N.Y.2d 546, 754 N.Y.S.2d 198, 784 N.E.2d 71; People v. Jones, 282 A.D.2d 382, 382-383, 723 N.Y.S.2d 650; People v. Washington, 148 A.D.2d 559, 560, 538 N.Y.S.2d 882; People v. Dekle, 83 A.D.2d 522, 522, 441 N.Y.S.2d 261, affd. 56 N.Y.2d 835, 452 N.Y.S.2d 568, 438 N.E.2d 101).

However, when the trial court instructed the jury on the charge of robbery in the first degree, it merely repeated the language in the statute ( see Penal Law § 160.15[3] ), and it "did not use the term 'actual possession,' or in any other way convey that requirement to the jury" ( People v. Ford, 11 N.Y.3d at 878, 874 N.Y.S.2d 859, 903 N.E.2d 256). Accordingly, the trial court erred in failing to adequately "state the material legal principles applicable to [this] case" (CPL 300.10[2]; see People v. Alvarez, 96 A.D.2d 864, 865, 465 N.Y.S.2d 758; People v. Davila, 59 A.D.2d 536, 537, 397 N.Y.S.2d 123; accord People v. Ford, 11 N.Y.3d at 878, 874 N.Y.S.2d 859, 903 N.E.2d 256). Although this error was not preserved for appellate review ( see CPL 470.05[2]; People v. Ford, 11 N.Y.3d at 878, 874 N.Y.S.2d 859, 903 N.E.2d 256; People v. LaPetina, 34 A.D.3d 836, 840, 828 N.Y.S.2d 72, affd. 9 N.Y.3d 854, 840 N.Y.S.2d 890, 872 N.E.2d 1196; cf. People v. Jean-Baptiste, 11 N.Y.3d 539, 544, 872 N.Y.S.2d 701, 901 N.E.2d 192), "[w]e nevertheless reach [it] under the circumstances of this case in the exercise of our interest of justice jurisdiction" ( People v. Cotterell, 7 A.D.3d 807, 807, 779 N.Y.S.2d 500; see People v. Rosario, 300 A.D.2d 512, 513, 750 N.Y.S.2d 894; People v. Little, 215 A.D.2d 778, 779, 627 N.Y.S.2d 416). "[A]s the evidence of the defendant's guilt was not overwhelming, we have no occasion to apply harmless error analysis" ( People v. Green, 70 A.D.3d 39, 46, 890 N.Y.S.2d 65; see People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787). Consequently, we reverse the judgment of conviction and...