People v. Gonzalez

• Decision Date: 21 November 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Octavio GONZALEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 507
65 N.Y.S.3d 142

The PEOPLE of the State of New York, Respondent,
v.
Octavio GONZALEZ, Defendant–Appellant.

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

Nov. 21, 2017.

65 N.Y.S.3d 143

Richard M. Greenberg, Office of the Appellate Defender, New York (Anastasia B. Heeger of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.

RICHTER, J.P., GISCHE, KAPNICK, KAHN, KERN, JJ.

155 A.D.3d 507

Judgment, Supreme Court, New York County (Charles H. Solomon, J. at initial motion to exclude DNA evidence; Edward J. McLaughlin, J. at subsequent motion, jury trial and sentencing), rendered January 14, 2014, convicting defendant of assault in the second degree, and sentencing him to a term of four years, unanimously affirmed.

The court properly declined to submit third-degree assault as a lesser included offense. There was no reasonable view of the evidence, viewed most favorably to defendant, under which defendant hit and kicked the victim, but neither cut the victim's throat personally, nor acted in concert (see Penal Law § 20.00 ) with another person who did so (see People v. Montanez, 147 A.D.3d 444, 445, 47 N.Y.S.3d 6 [1st Dept.2017] ).

The court providently exercised its discretion in denying defendant's mistrial

65 N.Y.S.3d 144

motion, the only remedy requested, when it came to light that a juror had prematurely informed the other jurors that he was already convinced of defendant's guilt. The court provided a sufficient remedy by simply discharging this juror, because the information before the court indicated that all the other jurors had rejected any notion of premature deliberations and cautioned the offending juror not to make such a statement. Even if further inquiries of the remaining jurors would have been appropriate, defense counsel expressly declined that remedy (see People v. Ayers, 214 A.D.2d 459, 625 N.Y.S.2d 206 [1st Dept.1995], lv. denied 86 N.Y.2d 732, 631 N.Y.S.2d 612, 655 N.E.2d 709 [1995] ).

The motion...