People v. Rodriguez

2021 NY Slip Op 05990

The People of the State of New York, respondent, v. Samuel Rodriguez, appellant.

No. 2018-04336

Ind. No. 1070/16

Supreme Court of New York, Second Department

November 3, 2021

Patricia Pazner, New York, NY (Martin B. Sawyer of counsel) for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, and Aharon Diaz of counsel), for respondent.

REINALDO E. RIVERA, J.P., VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, WILLIAM G. FORD, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered January 23, 2018, convicting him of robbery in the first degree (four counts), robbery in the second degree (six counts), grand larceny in the fourth degree (two counts), criminal possession of a weapon in the fourth degree (four counts), and criminal possession of stolen property in the fifth degree (four counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law and the facts, by vacating the convictions of robbery in the first degree pursuant to Penal Law § 160.15(3) charged in counts 1 and 6 of the indictment, robbery in the second degree pursuant to Penal Law § 160.10(1) charged in counts 2 and 7 of the indictment, robbery in the second degree pursuant to Penal Law § 160.10(2)(a), charged in counts 3 and 8 of the indictment, grand larceny in the fourth degree pursuant to Penal Law § 155.30(4), charged in counts 4 and 9 of the indictment, criminal possession of a weapon in the fourth degree pursuant to Penal Law § 265.01(2) charged in counts 5 and 10 of the indictment, and criminal possession of stolen property in the fifth degree pursuant to Penal Law § 165.40 charged in counts 17 and 18 of the indictment, and the sentences imposed thereon, and dismissing counts 1 through 10 and counts 17 and 18 of the indictment; as so modified, the judgment is affirmed.

The defendant was charged with a number of crimes relating to four separate robberies, two committed on February 28, 2016, and two committed on February 29, 2016. After a trial, the jury found the defendant guilty of all crimes charged in the indictment.

We agree with the defendant's contention that the evidence was legally insufficient to support his convictions of robbery in the second degree pursuant to Penal Law § 160.10(2)(a), charged in counts 3 and 8 of the indictment, since the People failed to establish that the complainants suffered a physical injury. The evidence, when viewed in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), was legally insufficient to establish, beyond a reasonable doubt, that the complainants each 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" (Penal Law § 10.00[9]). Here, both complainants testified at trial that they were hit from behind on the head. Neither of the complainants sought medical attention. One complainant testified that he had pain that lasted two days, and did not testify that he took any medication to treat his pain. The other complainant testified that his pain lasted for about one week and that he treated it with ice and Advil. Under these circumstances, there was insufficient evidence that either of the complainants suffered a physical injury within the meaning of Penal Law § 10.00(9) (see People v Williams, 146 A.D.3d 906, 909; People v Boley, 106 A.D.3d 753, 753-754; People v Young, 99 A.D.3d 739, 740). Accordingly, we vacate the defendant's convictions of robbery in the second degree pursuant to Penal Law § 160.10(2)(a), charged in counts 3 and 8 of the indictment, and the sentences imposed thereon, and dismiss those counts of the indictment.

The defendant contends that the evidence was legally insufficient to support his convictions concerning three of the robberies because the prosecution failed to prove his identity as one of the perpetrators of those crimes. Contrary to the People's contention, the defendant preserved for appellate review this challenge to the legal sufficiency of the evidence (see CPL 470.05[2]). However, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, since the circumstantial evidence established a prima facie case as to the defendant's identity as one of the perpetrators of these crimes (see People v Alman, 181 A.D.3d 694; People v Callicut, 101 A.D.3d 1256, 1259-1260; People v Torres, 231 A.D.2d 594).

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), 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; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence with respect to the crimes committed on February 29, 2016, charged in counts 11 through 16 and counts 19 and 20 of the indictment (see People v Romero, 7 N.Y.3d 633). However, as to the crimes committed on February 28, 2016, charged in counts 1 through 2, 4 through 7, 9 through 10, and 17 through 18 of the indictment, we find that acquittal would not have been unreasonable (see People v Danielson, 9 N.Y.3d at 348; People v Romero, 7 N.Y.3d at 643). Accordingly, we "must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (People v Danielson, 9 N.Y.3d at 348; see People v Abellard, 189 A.D.3d 1605, 1606).

A New York Police Department detective testified at the trial that in the course of investigating these crimes, he executed a search warrant at the home of the codefendant. During that search, the detective found, in addition to fruits of the February 28, 2016, crimes, a permanent resident identification card and a social security card in names not matching the names of either the defendant or the codefendant. ...