People v. Gonzalez
| Decision Date | 04 May 1993 |
| Citation | 193 A.D.2d 360,597 N.Y.S.2d 44 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jose GONZALEZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and MILONAS, ELLERIN and WALLACH, JJ.
Judgment, Supreme Court, New York County (Clifford Scott, J.), rendered November 14, 1991, convicting defendant, after a jury trial, of attempted murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and attempted assault in the first degree, and sentencing him, as a second felony offender, to concurrent terms of imprisonment of 10 to 20 years, 10 to 20 years, 7 1/2 to 15 years, 3 1/2 to 7 years and 3 1/2 to 7 years, respectively, unanimously affirmed.
The evidence at trial was legally sufficient to prove that defendant was armed with a deadly weapon, notwithstanding that the weapon was never recovered (see, People v. Johnson, 144 A.D.2d 494, 495, 533 N.Y.S.2d 1000). Nor was the verdict against the weight of the evidence. Indeed, the evidence of guilt was overwhelming.
The tape recording of the complainant's 911 call was properly admitted into evidence as an excited utterance (People v. Seymour, 183 A.D.2d 35, 588 N.Y.S.2d 551, lv. denied 81 N.Y.2d 766, 594 N.Y.S.2d 729, 610 N.E.2d 402; People v. Wright, 157 A.D.2d 534, 549 N.Y.S.2d 724, lv. denied 75 N.Y.2d 971, 556 N.Y.S.2d 256, 555 N.E.2d 628). The evidence at trial clearly demonstrated the circumstances under which the statement was made and revealed that, during the brief period between the encounter and the telephone call, the complainant was in flight, searching for a place in which she could call the police in safety, and that the call itself was made as she hid under a desk in a nearby office.
We reject defendant's argument that it was error to admit a spent bullet found at the scene. It cannot be trivialized as mere coincidence that a bullet was promptly recovered at the scene of an alleged shooting, and the bullet was, thus, "sufficiently connected" with defendant to be relevant to an issue in the case (see, People v. Mirenda, 23 N.Y.2d 439, 453, 297 N.Y.S.2d 532, 245 N.E.2d 194).
Defendant's argument that the prosecutor knowingly allowed the use of false testimony, i.e., the complainant's companion's testimony that a second bullet was recovered from the scene, is not preserved for review and is, in any case, without merit. The prosecutor not only did not attempt to use the testimony to her advantage but, in fact, disavowed it (cf., People v. Novoa, 70 N.Y.2d 490, 498, 522 N.Y.S.2d 504, 517 N.E.2d 219).
Defendant's Rosario claim concerns his right to receive unredacted copies of the complainant's diary, which had been handed over to the District...
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... ... The People presented testimony establishing that defendant possessed a loaded firearm and intentionally fired it at the victim (see e.g. People v. Gonzalez, 193 A.D.2d 360, 361, 597 N.Y.S.2d 44 [1st Dept. 1993] ; People v. Ciola, 136 A.D.2d 557, 557, 523 N.Y.S.2d 553 [2d Dept. 1988], lv denied 71 N.Y.2d 893, 527 N.Y.S.2d 1003, 523 N.E.2d 310 [1988] ).Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see ... ...
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... ... In our view, [i]t cannot be trivialized as mere coincidence that [defendant's semen] was ... recovered at the scene of the alleged sexual encounter ( People v. Gonzalez, 193 A.D.2d 360, 361, 597 N.Y.S.2d 44). We thus conclude that the DNA evidence is direct and relevant evidence of the instant offense ( see generally People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728;People v. Mirenda, 23 N.Y.2d 439, 453, 297 N.Y.S.2d 532, 245 N.E.2d 194) ... ...
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... ... Contrary to the defendant's contention, an adequate foundation was established to admit the razor blade into evidence (see, People v. Mirenda, 23 N.Y.2d 439, 297 N.Y.S.2d 532, 245 N.E.2d 194; People v. Gonzalez, 193 A.D.2d 360, 597 N.Y.S.2d 44; People v. Mason, 186 A.D.2d 590, 588 N.Y.S.2d 387; People v. Morales, 161 A.D.2d 806, 556 N.Y.S.2d 374) ... In ... ...
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... ... We agree with the views expressed in the opinion People v. Gonzalez, 193 A.D.2d 360, 361, 597 N.Y.S.2d 44, 46 (N.Y. App. Div. 1993), wherein it was written: ... We reject defendant's ... ...