People v. Warren

• Decision Date: 20 October 2021
• Docket Number: Ind. 1909/11,2016-06936
• Parties: The People, etc., respondent, v. Charles Warren, appellant.
• Court: United States State Supreme Court (New York)

The People, etc., respondent,
v.
Charles Warren, appellant.

No. 2016-06936

Ind. No. 1909/11

Supreme Court of New York, Second Department

October 20, 2021

Argued - September 27, 2021.

Patricia Pazner, New York, NY (Ronald Zapata of counsel), for appellant, and appellant pro se.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Joseph N. Ferdenzi, and Christopher Blira-Koessler of counsel), for respondent.

SYLVIA O. HINDS-RADIX, J.P. VALERIE BRATHWAITE NELSON ANGELA G. IANNACCI JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered June 16, 2016, convicting him of burglary in the first degree, sexual abuse in the first degree (four counts), assault in the second degree (three counts), attempted robbery in the second degree, and attempted sexual abuse in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification evidence and to sever certain counts of the indictment.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, (1) by reducing the conviction of sexual abuse in the first degree under count 3 of the indictment to sexual abuse in the third degree, and vacating the sentence imposed thereon, and (2) by vacating the conviction of sexual abuse in the first degree under count 10 of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the conviction of sexual abuse in the third degree.

The defendant contends that his conviction of sexual abuse in the first degree under

1

count 3 of the indictment is based upon legally insufficient evidence. Although his contention is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484, 492), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally insufficient to establish the defendant's guilt beyond a reasonable doubt of sexual abuse in the first degree under count 3 of the indictment. A...