People v. Garcia

194 A.D.3d 956

146 N.Y.S.3d 672

The PEOPLE, etc., respondent,

v.Corona GARCIA, appellant.

2019–08333

Ind. No. 2448/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 22, 2021

May 19, 2021

Steven A. Feldman, Manhasset, N.Y. (Arza Feldman of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Natasha R. Pooran of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Peter F. Vallone, Jr., J.), rendered June 27, 2019, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the fourth degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the facts, the indictment is dismissed insofar as it relates to the defendant, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent with CPL 160.50.

The complainant was assaulted and robbed by four men in September 2017. The defendant and three codefendants were charged, inter alia, with robbery in the first and second degrees, grand larceny in the fourth degree, and assault in the third degree, and were jointly tried.

At the jury trial, the complainant testified that on the night in question, he was walking through a small park on his way to work. The complainant described one of the four men—whom he had seen approximately 35 times before in the same park, as well as at the complainant's workplace—as heavy set, with dark skin and a long, bleach-blond beard and a cap.

According to the complainant, the four men were sitting on a bench as he entered the park. The bearded man stood up, approached the complainant, and asked for five dollars. When the complainant refused, the bearded man began to raise his voice, and the other three men stood up and positioned themselves behind the complainant. The bearded man then pulled out a knife and lunged at the complainant and the complainant backed into the other three men, who punched him in the back, threw him to the ground, kicked him, and took his wallet. The complainant could not see his attackers’ faces while he was on the ground, and the incident lasted only "15 seconds [or] maybe less." After the attack, the complainant observed the four men leave the park together, proceed down the street, and turn the corner until they were out of sight; the bearded man was on a bicycle and the other three were on foot.

Within a few seconds, the complainant got up and went to a deli across the street to call the police. The complainant provided a description of the bearded man to the 911 operator, but not of the other three men. The police arrived at the scene within minutes and spoke with the complainant outside the deli. What happened next is not entirely clear.

The complainant testified that he told the responding police officer that one of the accomplices of the bearded man was short and wore a black shirt and a bandana depicting the Mexican flag. The police then went into the park, where there were "3 to 4 more people," and started canvassing the area with their flashlights. Approximately 20 minutes later, the complainant was brought back to the park in a police vehicle to see if he could recognize someone who had just been stopped, and the complainant identified the man with the black shirt and bandana. When asked, in open court, to identify the man who was wearing the bandana, the complainant initially pointed to the defendant but said he was "not sure." Later, the complainant identified one of the codefendants as the man with the bandana.

By contrast, the police officer who spoke with the complainant outside the deli testified that the only description given of the perpetrators was four male Hispanics, one with a bleach-blond beard, and that the complainant never mentioned that one of the perpetrators was wearing a bandana. After speaking with the complainant, the officer, accompanied by the complainant, crossed the street and entered the park where the robbery had occurred. The defendant, who was wearing a black shirt and sitting on a bench approximately 100 feet from where the crime took place, was the only person in the park. The officer walked up to the defendant, who did not flee or offer any resistance, told him to stand, and placed him in handcuffs. Upon searching the defendant, the officer found a bandana depicting the Mexican flag in his pocket. According to the arresting officer, upon seeing the bandana, the complainant told the officer for the first time that one of the...