People v. Garland

CourtNew York Supreme Court Appellate Division
Citation65 N.Y.S.3d 167,155 A.D.3d 527
Parties The PEOPLE of the State of New York, Respondent, v. Tamarkqua GARLAND, Defendant–Appellant.
Decision Date28 November 2017

155 A.D.3d 527
65 N.Y.S.3d 167

The PEOPLE of the State of New York, Respondent,
v.
Tamarkqua GARLAND, Defendant–Appellant.

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

Nov. 28, 2017.


65 N.Y.S.3d 168

Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (James Wen of counsel), for respondent.

MANZANET–DANIELS, J.P., MAZZARELLI, MOSKOWITZ, KAHN, KERN, JJ.

155 A.D.3d 527

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered May 8, 2015, convicting defendant after a jury trial, of two counts of assault in the first degree and one count of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 14 years, affirmed. Judgment, same court (Peter J. Benitez, J. at suppression hearing; Lester Adler, J. at plea and sentencing), rendered

65 N.Y.S.3d 169

March 2, 2016, convicting defendant upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree, and sentencing him to a concurrent term of 1 ½ years, unanimously affirmed.

With regard to the trial conviction, the court properly denied defendant's speedy trial motion. Defendant did not meet his

155 A.D.3d 528

burden of demonstrating that the People's statement of readiness, which is "presumed truthful and accurate," was illusory ( People v. Brown, 28 N.Y.3d 392, 405, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ). The record supports the reasonable inference that the prosecutor had reestablished contact with the complainant at the time that he filed the off-calendar statement of readiness.

The court properly denied defendant's suppression motion. As to the warrantless arrest of defendant, the People showed that the officers had obtained voluntary consent to enter the apartment from a person with the requisite authority (see People v. Cosme, 48 N.Y.2d 286, 290, 422 N.Y.S.2d 652, 397 N.E.2d 1319 [1979] ). Neither the testimony of defendant nor the testimony of the detective gives rise to an inference that the person had submitted to coercion by the police (see People v. Gonzalez, 39 N.Y.2d 122, 128, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976] ).

Accepting the hearing court's credibility determinations (see People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), the People also met their burden of demonstrating that defendant waived his Miranda rights and made the written statement voluntarily. The court properly permitted the People to cross-examine defendant on the substance of the written statement, as defendant opened the door to the inquiry by testifying on direct examination that the detective interrogating him had rejected his initial statement and coerced him into writing the subsequent inculpatory statement (see People v. Darrett, 2 A.D.3d 16, 20–21, 769 N.Y.S.2d 14 [1st Dept.2003] ; People v. Huntley, 46 Misc.2d 209, 211–212, 259 N.Y.S.2d 369 [Sup.Ct., N.Y. County 1965], affd. 27 A.D.2d 904, 281 N.Y.S.2d 970 [1st Dept.1967], affd. 21 N.Y.2d 659, 287 N.Y.S.2d 90, 234 N.E.2d 252 [1967] ).

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The element of serious physical injury ( Penal Law § 10.00[10] ) required for the assault convictions ( Penal Law § 120.10[1], [3] ) was established by evidence showing that four years after the complainant was struck by a bullet, he still felt pain and the bullet fragments in his leg and could not engage in sports at the same level as before the incident. This proof sufficiently shows a protracted impairment of health or protracted impairment of the function of a bodily organ to support a finding of serious physical injury (see Penal Law § 10.00[10] ; People v. Rosa, 112 A.D.3d 551, 977 N.Y.S.2d 250 [1st Dept.2013], lv. denied 22 N.Y.3d 1202, 986 N.Y.S.2d 422, 9 N.E.3d 917 [2014] ; People v. Messam, 101 A.D.3d 407, 954 N.Y.S.2d 532 [1st Dept.2012], lv. denied 20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536 [2013] ; People v. Corbin, 90 A.D.3d 478, 479, 934 N.Y.S.2d 389 [1st Dept.2011], lv. denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765 [2012] ). Defendant's intent to cause such injury ( Penal Law § 120.10[1] ) is established by his written statement admitting that he fired the gun five times into a crowd of

155 A.D.3d 529

people (see People v. Hernandez, 233 A.D.2d 273, 650 N.Y.S.2d 539 [1st Dept.1996], lv. denied 89 N.Y.2d 986, 656 N.Y.S.2d 744, 678 N.E.2d 1360 [1997] ).

65 N.Y.S.3d 170

His written confession also establishes the element of possession of a loaded firearm required for the weapon possession conviction (see Penal Law § 265.03[3] ).

By failing to object to any of the alleged prejudicial comments by the prosecutor, defendant failed to preserve his challenges to the People's summation (see People v. Flagg, 149 A.D.3d 513, 514–515, 51 N.Y.S.3d 504 [1st Dept.2017], lv. denied 29 N.Y.3d 1079, 64 N.Y.S.3d 168, 86 N.E.3d 255 [2017] ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The bulk of the challenged remarks were either fair response to defense counsel's arguments on summation or fair comment on the evidence, and any improprieties were not so egregious as to deprive defendant of a fair trial (see People v. D'Alessandro, 184 A.D.2d 114, 591 N.Y.S.2d 1001 [1st Dept.1992], lv. denied 81 N.Y.2d 884, 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

Regarding defendant's plea conviction, the record shows that defendant's waiver of his right to appeal was not knowing, intelligent and voluntary. Moreover, the waiver contains language that has been found by this Court to render a waiver unenforceable (see People v. Powell, 140 A.D.3d 401, 30 N.Y.S.3d 873 [1st Dept.2016], lv. denied 28 N.Y.3d 1074, 47 N.Y.S.3d 233, 69 N.E.3d 1029 [2016] ). Nevertheless, defendant's challenge to the suppression ruling is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Since we do not find the officer's testimony to be manifestly untrue, contrary to common experience, self-contradictory, or tailored, we decline to disturb the court's conclusion that the testimony was credible (see People v. Sanchez, 248 A.D.2d 306, 671 N.Y.S.2d 450 [1st Dept.1998], lv. denied 92 N.Y.2d 928, 680 N.Y.S.2d 469, 703 N.E.2d 281 [1998], 92 N.Y.2d 930, 680 N.Y.S.2d 472, 703 N.E.2d 284 [1998] ; People v. Jordan, 242 A.D.2d 254, 255, 661 N.Y.S.2d 228 [1st Dept.1997], lv. denied 91 N.Y.2d 875, 668 N.Y.S.2d 573, 691 N.E.2d 645 [1997] ). The officer's testimony that, while apprehending another individual, he saw defendant sitting on the stairs with a scale and drugs supports the court's finding of probable cause to arrest defendant and seize the drugs.

All concur except MANZANET–DANIELS, J. who dissents in part in a memorandum as follows.

MANZANET–DANIELS, J. (dissenting in part)

In my view, the evidence at trial was legally insufficient to establish the element of "serious physical injury," defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" ( Penal Law [PL] § 10.00[10] ), and the convictions for assault in the first degree under PL §§ 120.10(1) and 120.10(3) should be reversed.

155 A.D.3d 530

The charges stem from an incident on the evening of October 9, 2010, when, during a street brawl, defendant shot a gun multiple...

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6 practice notes
  • People v. Smith, 2014–07789
    • United States
    • New York Supreme Court Appellate Division
    • January 16, 2019
    ...establish that the complainant sustained a "serious physical injury" within the meaning of Penal Law § 10.00(10) (see People v. Garland, 155 A.D.3d 527, 528, 65 N.Y.S.3d 167, affd 465 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071, 2018 N.Y. Slip Op. 07927 [2018] ; People v. Lindsay, 131 A.D......
  • People v. Sutton, 108638
    • United States
    • New York Supreme Court Appellate Division
    • July 11, 2019
    ...130, 89 N.E.3d 520 [2017] ), we find that the weight of the evidence amply supports the jury's guilty verdict (see People v. Garland, 155 A.D.3d 527, 528–529, 65 N.Y.S.3d 167 [2017], affd 32 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071 [2018] ; People v. Forde, 120 A.D.3d at 509, 990 N.Y.S......
  • People v. Clarke, 2014–06452
    • United States
    • New York Supreme Court Appellate Division
    • March 27, 2019
    ...to establish that the complainant sustained a serious physical injury within the meaning of Penal Law § 10.00(10) (see People v. Garland, 155 A.D.3d 527, 528, 65 N.Y.S.3d 167, affd 32 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071 ; People v. Lindsay, 131 A.D.3d 625, 626, 16 N.Y.S.3d 566 ). ......
  • People v. Martinez, 2021-51215
    • United States
    • United States State Supreme Court (New York)
    • December 20, 2021
    ...fair comment on the evidence, and any improprieties were not so egregious as to deprive defendant of a fair trial (see People v Garland, 155 A.D.3d 527, 529 [2017], affd 32 N.Y.3d 1094 [2018], cert denied 140 S.Ct. 2525 [2020]; People v Feola, 154 A.D.3d 638, 639 [2017], lv denied 31 N.Y.3d......
  • Request a trial to view additional results
6 cases
  • People v. Smith, 2014–07789
    • United States
    • New York Supreme Court Appellate Division
    • January 16, 2019
    ...establish that the complainant sustained a "serious physical injury" within the meaning of Penal Law § 10.00(10) (see People v. Garland, 155 A.D.3d 527, 528, 65 N.Y.S.3d 167, affd 465 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071, 2018 N.Y. Slip Op. 07927 [2018] ; People v. Lindsay, 131 A.D......
  • People v. Sutton, 108638
    • United States
    • New York Supreme Court Appellate Division
    • July 11, 2019
    ...130, 89 N.E.3d 520 [2017] ), we find that the weight of the evidence amply supports the jury's guilty verdict (see People v. Garland, 155 A.D.3d 527, 528–529, 65 N.Y.S.3d 167 [2017], affd 32 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071 [2018] ; People v. Forde, 120 A.D.3d at 509, 990 N.Y.S......
  • People v. Clarke, 2014–06452
    • United States
    • New York Supreme Court Appellate Division
    • March 27, 2019
    ...to establish that the complainant sustained a serious physical injury within the meaning of Penal Law § 10.00(10) (see People v. Garland, 155 A.D.3d 527, 528, 65 N.Y.S.3d 167, affd 32 N.Y.3d 1094, 90 N.Y.S.3d 618, 114 N.E.3d 1071 ; People v. Lindsay, 131 A.D.3d 625, 626, 16 N.Y.S.3d 566 ). ......
  • People v. Martinez, 2021-51215
    • United States
    • United States State Supreme Court (New York)
    • December 20, 2021
    ...fair comment on the evidence, and any improprieties were not so egregious as to deprive defendant of a fair trial (see People v Garland, 155 A.D.3d 527, 529 [2017], affd 32 N.Y.3d 1094 [2018], cert denied 140 S.Ct. 2525 [2020]; People v Feola, 154 A.D.3d 638, 639 [2017], lv denied 31 N.Y.3d......
  • Request a trial to view additional results

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