People v. Robles
| Decision Date | 10 July 2019 |
| Docket Number | Ind. No. 2660/14,2016–00276 |
| Citation | 174 A.D.3d 653,105 N.Y.S.3d 111 |
| Parties | The PEOPLE, etc., Respondent, v. Saul ROBLES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Paul Skip Laisure, New York, N.Y. (Kendra L. Hutchison of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Dmitriy Povazhuk of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
In 2010, during a street fight in Brooklyn, one victim was fatally stabbed and another victim was stabbed and severely injured. A witness (hereinafter the first witness) who participated in the fight and was acquainted with the defendant identified the defendant as the perpetrator. Another witness to the fight (hereinafter the second witness), was unable to identify the defendant during two pretrial identification procedures. Nevertheless, at the jury trial, the People were permitted to elicit testimony from the second witness that, during a lineup procedure, after the second witness indicated that she could not identify anyone as the perpetrator, the police asked her whom she would "lean toward." The second witness testified that "that's when [she] picked" the defendant, who was in position number two. At the trial, the People further asked the second witness, "Do you recall specifically what it was about number two that made you lean towards that person?" and she replied, "the jaw."
The defendant was acquitted of murder in the second degree and manslaughter in the first degree, charges relating to the deceased victim, but was found guilty of attempted murder in the second degree, assault in the first degree, and gang assault in the first degree, charges relating to the victim who had been severely injured.
The defendant's contention that the evidence was legally insufficient to support his convictions because the prosecution failed to establish his identity as the perpetrator of those crimes is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt (see People v. Lancaster, 166 A.D.3d 807, 808–809, 87 N.Y.S.3d 232 ; People v. Lewis, 150 A.D.3d 1264, 1264, 57 N.Y.S.3d 62 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon viewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
Nevertheless, we agree with the defendant's contention that reversal of the judgment is warranted based on the admission of the second witness's testimony. Although this issue is preserved for appellate review only to the extent that the defendant argues that the second witness's testimony was irrelevant and unduly prejudicial (see CPL 470.05[2] ), we review the defendant's unpreserved arguments in the exercise of our interest of justice jurisdiction (see CPL 470.15 ). As correctly argued by the defendant, the foundational requirements of CPL 60.25 were not met (see People v. Nesbitt, 77 A.D.3d 854, 855–856, 910 N.Y.S.2d 471 ). CPL 60.25 is principally concerned with cases where a witness who has validly identified a defendant on a prior occasion is, nevertheless, unable to make a trial identification due to a lapse of memory (see People v. Hernandez, 154 A.D.2d 197, 200–201, 552 N.Y.S.2d 649 ). CPL 60.25(1)(a)(iii) permits a witness to testify in a criminal proceeding about his or her own prior identification where the witness is "unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question" (see People v. Bayron, 66 N.Y.2d 77, 81, 495 N.Y.S.2d 24, 485 N.E.2d 231 ). The second witness never identified the defendant at the lineup and, thus, there was no prior identification for her to testify about under CPL 60.25 (see People v. Patterson, 93 N.Y.2d 80, 82, 688...
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...climate of hostility toward the defense, and was one of several errors warranting reversal and a new trial. People v. Robles , 174 A.D.3d 653, 105 N.Y.S.3d 111 (2d Dept. 2019). he prosecutor engaged in inappropriate advocacy during summation by arguing to the jury that the defendant was gui......
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Summation
...of its own witnesses, who testiied in conlict with another both at sidebar and during summation, was reversible error. People v. Robles , 174 A.D.3d 653, 105 N.Y.S.3d 111 (2d Dept. 2019). he prosecutor engaged in inappropriate advocacy during summation by arguing to the jury that the defend......
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Attorney conduct
...admissions and physical evidence, resolution of the matter did not depend solely upon credibility assessments. People v. Robles , 174 A.D.3d 653, 105 N.Y.S.3d 111 (2d Dept. 2019). The prosecutor engaged in inappropriate advocacy during summation by arguing to the jury that the defendant was......
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Attorney conduct
...climate of hostility toward the defense, and was one of several errors warranting reversal and a new trial. People v. Robles , 174 A.D.3d 653, 105 N.Y.S.3d 111 (2d Dept. 2019). he prosecutor engaged in inappropriate advocacy during summation by arguing to the jury that the defendant was gui......