People v. Hernandez
| Decision Date | 30 January 1997 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Roberto HERNANDEZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Allen H. Saperstein, for Respondent.
Lawrence T. Hausman, for Defendant-Appellant.
Before MILONAS, J.P., and ELLERIN, RUBIN and MAZZARELLI, JJ.
Judgment, Supreme Court, Bronx County (Ira Globerman, J.), rendered September 9, 1994, convicting defendant, after a jury trial, of reckless endangerment in the first degree, criminal possession of stolen property in the fourth degree and resisting arrest, and sentencing him, as a second felony offender, to consecutive prison terms of 2 to 4 years, 2 to 4 years and 1 year, unanimously affirmed.
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence. There was ample evidence to support the elements of reckless endangerment in the first degree (People v. Chrysler, 85 N.Y.2d 413, 415, 626 N.Y.S.2d 18, 649 N.E.2d 1162; People v. Register, 60 N.Y.2d 270, 277, 469 N.Y.S.2d 599, 457 N.E.2d 704; People v. Williams, 158 A.D.2d 253, 550 N.Y.S.2d 657, lv. denied 75 N.Y.2d 971, 556 N.Y.S.2d 256, 555 N.E.2d 628).
Since defendant advanced a different theory of duplicitousness to the trial court, his present contention that the reckless endangerment count is duplicitous is unpreserved for review (People v. Fisher, 223 A.D.2d 493, 637 N.Y.S.2d 382, lv. denied 88 N.Y.2d 936, 647 N.Y.S.2d 169, 670 N.E.2d 453) and we decline to review it in the interest of justice. Were we to review it, we would find that the count was not duplicitous since it involved a continuing offense (People v. First Meridian Planning Corp., 86 N.Y.2d 608, 615-618, 635 N.Y.S.2d 144, 658 N.E.2d 1017; People v. Brammer, 189 A.D.2d 885, 886, 592 N.Y.S.2d 761, lv. denied 81 N.Y.2d 967, 598 N.Y.S.2d 769, 615 N.E.2d 226). In any event, "any duplicitousness was alleviated by the manner in which the count [was] submitted to the jury" (People v. Fisher, supra, at 494, 637 N.Y.S.2d 382).
Defendant was not entitled to a missing witness charge with respect to a police witness because defendant failed to make a prima facie showing that the witness would have provided material, non-cumulative testimony. Defendant's speculation that the witness might have provided testimony helpful to the defense did not require a missing witness charge (People v. Castro, 200 A.D.2d 359, 606 N.Y.S.2d 180, lv....
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...1263, 1265, 974 N.Y.S.2d 692 [2013], affd. 25 N.Y.3d 997, 10 N.Y.S.3d 169, 32 N.E.3d 384 [2015] ; see also People v. Hernandez, 235 A.D.2d 367, 368, 653 N.Y.S.2d 322 [1997], lv. denied 89 N.Y.2d 1012, 658 N.Y.S.2d 250, 680 N.E.2d 624 [1997] ). Relative to this charge, to establish that defe......
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...a continuing offense” and could therefore encompass multiple acts in one count without being duplicitous ( People v. Hernandez, 235 A.D.2d 367, 368, 653 N.Y.S.2d 322,lv. denied89 N.Y.2d 1012, 658 N.Y.S.2d 250, 680 N.E.2d 624). In our view, the fact that the multiple shots were fired from tw......
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...it charges more than one crime does not apply, where, as here, the charges are for continuing crimes (see People v. Hernandez, 235 A.D.2d 367, 368, 653 N.Y.S.2d 322 [1st Dept. 1997], lv denied 89 N.Y.2d 1012, 658 N.Y.S.2d 250, 680 N.E.2d 624 [1997] ). Contrary to defendant's claim, the indi......