People v. Wheeler
| Decision Date | 26 January 2022 |
| Docket Number | 2016-04755,Ind. No. 8985/14 |
| Citation | 201 A.D.3d 960,160 N.Y.S.3d 337 |
| Parties | The PEOPLE, etc., respondent, v. Elsun WHEELER, appellant. |
| Court | New York Supreme Court — Appellate Division |
Janet E. Sabel, New York, NY (Tomoeh Murakami Tse of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Keith Dolan of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, SYLVIA O. HINDS–RADIX, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered April 7, 2016, convicting him of burglary in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, the count of the indictment charging the defendant with assault in the second degree is dismissed, that branch of the defendant's omnibus motion which was to suppress two identifications of the defendant from arrest photographs is granted, and a new trial is ordered on the count of the indictment charging the defendant with burglary in the second degree, to be preceded by a hearing to determine whether an independent source exists for the burglary complainant's identification.
The defendant was indicted, inter alia, on charges in connection with a residential burglary allegedly committed on April 20, 2014, and for punching a police detective on October 28, 2014, as the detective was attempting to place him in a lineup.
During the investigation of the burglary, the complainant informed police that a Facebook photograph depicted the perpetrator of the burglary, and that photograph led police to the defendant's photograph from a prior arrest. On two occasions, the complainant was asked whether she could identify the individual depicted in an arrest photograph of the defendant, and she replied that he was the perpetrator of the burglary. In his omnibus motion, the defendant sought, inter alia, to suppress the burglary complainant's identification testimony on the ground that the two photographic identification procedures were impermissibly suggestive. After a hearing, the Supreme Court ruled that the identification of the defendant was not a product of a police-arranged identification procedure. After a jury trial, the defendant was convicted of burglary in the second degree and assault in the second degree. The defendant appeals.
Here, although the burglary complainant's identification of the Facebook photograph was not the product of a police-arranged identification procedure, the complainant's identifications of the defendant from a single arrest photograph were the result of unduly suggestive identification procedures, and those identifications should have been suppressed (see People v. Marshall, 26 N.Y.3d 495, 506, 25 N.Y.S.3d 58, 45 N.E.3d 954 ; People v. Brown , 86 N.Y.2d 728, 631 N.Y.S.2d 121, 655 N.E.2d 162 ; People v. Thornton , 236 A.D.2d 430, 654 N.Y.S.2d 323 ). Accordingly, the defendant is entitled to a new trial on the count of burglary in the second degree, to be preceded by a hearing to determine whether an independent source exists for the complainant's identification of the defendant (see People v. Burts , 78 N.Y.2d 20, 23–24, 571 N.Y.S.2d 418, 574 N.E.2d 1024 ; People v. Redding , 65 A.D.3d 1059, 1060, 884 N.Y.S.2d 886 ).
The defendant's challenge to the legal sufficiency of the evidence 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 guilt of burglary in the second degree beyond a reasonable doubt. 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, 348, 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, 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 reviewing the record here, we are satisfied that the verdict of guilt as to burglary in the second degree 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 ).
However, upon the exercise of our interest of justice jurisdiction (see CPL 470.05[2] ), we conclude that the conviction of assault in the second degree is not supported by legally sufficient evidence that the detective sustained a "physical injury" within the meaning of Penal Law § 10.00(9). Physical injury is defined as "impairment of physical condition or substantial pain" (id. ). The detective testified that defendant hit him in the mouth with his fist, that his lip bled, and that he felt severe pain at the time. There was no evidence, however, corroborating the detective's subjective description of the degree of pain he experienced (see People v. Jhagroo, 186 A.D.3d 741, 743, 127 N.Y.S.3d 294 ).
The detective was taken to the hospital by a coworker. His certified hospital records assessed a "[l]ip abrasion" and a "superficial laceration to right lower lip." It was noted that the detective "currently denies bleeding, denies head trauma
." The detective did not receive stitches and went back to work that same day.
The record did not support a finding that the detective experienced substantial pain. At the time of his discharge from the hospital, the detective assessed his pain as a "3" and was advised to take Tylenol
for pain. His "quality" of pain was characterized as "aching." Furthermore, there was no evidence as to the duration of any pain. Accordingly, there was insufficient evidence that the detective suffered a physical injury within the meaning of Penal Law § 10.00(9) (see People v. Jimenez, 55 N.Y.2d 895, 449 N.Y.S.2d 22, 433 N.E.2d 1270 ; People v. Bernazard, 188 A.D.3d 1239, 136 N.Y.S.3d 397 ; People v. Stokes, 140 A.D.3d 800, 32 N.Y.S.3d 314 ; People v. Perry, 122 A.D.3d 775, 996 N.Y.S.2d 195 ; People v. Baksh, 43 A.D.3d 1072, 845 N.Y.S.2d 343 ).
( People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ), cited by our dissenting colleague, which involved a cracked fingernail and bleeding requiring a bandage and tetanus
shot, is distinguishable from the facts of this case. Further, although, in the instant case, the detective's coworker took him to the hospital immediately after the incident, the hospital records indicate that by the time he was treated, the detective seemingly had recovered from the initial shock, any bleeding had ceased, and pain was minimal. This case is distinguishable from ( People v. Martinez, 90 A.D.3d 409, 410, 933 N.Y.S.2d 285 ), where the officer sought medical treatment when he experienced significant pain hours later, and suffered "extensive swelling and bruising, as well as pain and soreness" for the next three to five days, and from the other cases cited by our dissenting colleague (see People v. Harris, 151 A.D.3d 490, 53 N.Y.S.3d 534 []; People v. Estevez, 145 A.D.3d 578, 42 N.Y.S.3d 799 []; People v. Krotoszynski, 43 A.D.3d 450, 453, 840 N.Y.S.2d 627 []; People v. Stephenson, 36 A.D.3d 560, 828 N.Y.S.2d 391 []).
Therefore, we vacate the defendant's conviction of assault in the second degree and the sentence imposed thereon and dismiss that count of the indictment.
In light of our determinations, we need not reach the defendant's remaining contentions.
ZAYAS, J., concurs in part and dissents in part, and votes to modify the judgment, on the law, by vacating the conviction of burglary in the second degree and the sentence imposed thereon, to grant that branch of the defendant's omnibus motion which was to suppress two identifications of the defendant from arrest photographs, and to order a new trial on the count of the indictment charging the defendant with burglary in the second degree, to be preceded by a hearing to determine whether an independent source exists for the burglary complainant's identification, and as so modified, to affirm the judgment, with the following memorandum:
I agree with my colleagues in the majority that the defendant is entitled to a new trial on the burglary count because of the Supreme Court's erroneous resolution of that branch of his motion which was to suppress identification testimony. I disagree, however, with the conclusion that the defendant's conviction of assault in the second degree should be vacated and that count of the indictment dismissed because there was legally insufficient evidence of physical injury. I also conclude that the verdict as to this count was not against the weight of the evidence. The injuries that the detective sustained after being punched "very hard" in the face by the defendant—a bloody lip, swelling to his face, and pain that was initially severe and later "aching," and for which he sought treatment at a hospital—are quintessential examples of injuries that satisfy this element of the offense.
In October...
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