People v. Moreno

Decision Date25 November 1996
Citation650 N.Y.S.2d 306,233 A.D.2d 531
PartiesThe PEOPLE, etc., Respondent, v. Henry MORENO, Appellant.
CourtNew York Supreme Court — Appellate Division

Estelle Jana Roond, Brooklyn, for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Victor Barall, Ann Bordley, and Yasmin Aziz, of counsel), for respondent.

Before THOMPSON, J.P., and JOY, KRAUSMAN and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered April 6, 1994, convicting him of robbery in the first degree (three counts), assault in the first degree, and criminal possession of a weapon in the second degree (four counts), upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, after a hearing (Curci, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

The defendant's contention that the court improperly participated in the hearing is not preserved for appellate review (see, CPL 470.05[2] ). In any event, the hearing court properly participated in the proceedings in order "to clarify the issues and facilitate the expeditious and orderly progress" of the hearing (People v. Wright, 221 A.D.2d 577, 578, 633 N.Y.S.2d 833; see also, People v. Moulton, 43 N.Y.2d 944, 403 N.Y.S.2d 892, 374 N.E.2d 1243; People v. Dominguez, 210 A.D.2d 249, 620 N.Y.S.2d 257; People v. Harrison, 151 A.D.2d 778, 543 N.Y.S.2d 108). In addition, the hearing court correctly determined that the showup identification was not unnecessarily suggestive (see, People v. Wright, supra; People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Dawson, 185 A.D.2d 854, 587 N.Y.S.2d 358).

The defendant failed to preserve for appellate review his contention that his conviction of assault in the first degree should be reduced to assault in the second degree because the evidence was insufficient to establish serious physical injury (see, CPL 470.05[2]; People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 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 assault in the first degree beyond a reasonable doubt. The testimony of the complainant that the gunshot wound to his shoulder resulted in nerve damage to his right arm causing loss of sensitivity in his right hand was legally sufficient to establish the "protracted loss or impairment of the function of any bodily organ" (People v. Wright, ...

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  • People v. Wilson
    • United States
    • New York Supreme Court — Appellate Division
    • July 27, 2016
    ...; 120.10[1]; People v. Graham, 297 A.D.2d 579, 747 N.Y.S.2d 171 ; People v. McDuffie, 293 A.D.2d 287, 740 N.Y.S.2d 48 ; People v. Moreno, 233 A.D.2d 531, 650 N.Y.S.2d 306 ; People v. Wright, 221 A.D.2d 577, 633 N.Y.S.2d 833 ). Moreover, upon our independent review of the evidence pursuant t......
  • People v. Nesbitt
    • United States
    • New York Supreme Court — Appellate Division
    • November 3, 2011
    ...the function of a bodily organ in that, at the time of trial, he suffered loss of sensation in his right arm (see People v. Moreno, 233 A.D.2d 531, 532, 650 N.Y.S.2d 306 [1996], lv. denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508 [1997] ). This same evidence also strongly supported t......
  • People v. Lindsay
    • United States
    • New York Supreme Court — Appellate Division
    • August 19, 2015
    ...injury within the meaning of Penal Law § 10.00(10) (see People v. McLawrence, 114 A.D.3d 964, 983 N.Y.S.2d 806 ; People v. Moreno, 233 A.D.2d 531, 650 N.Y.S.2d 306 ; People v. Wright, 221 A.D.2d 577, 633 N.Y.S.2d 833 ; People v. Meneses, 195 A.D.2d 527, 601 N.Y.S.2d 827 ). Moreover, upon th......
  • People v. McLawrence
    • United States
    • New York Supreme Court — Appellate Division
    • July 3, 2013
    ...Kern, 75 N.Y.2d 638, 658, 555 N.Y.S.2d 647, 554 N.E.2d 1235,cert. denied498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50;People v. Moreno, 233 A.D.2d 531, 532, 650 N.Y.S.2d 306). The sentences imposed were not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). However, we remit th......
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