People v. Garland

2017 NY Slip Op 8302, 155 A.D.3d 527, 65 N.Y.S.3d 167

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 2017
• Docket: 3886/10 4755 976/13 4754
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered May 8, 2015, convicting defendant after a jury trial, of two counts of assault in the first degree and one count of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 14 years, affirmed. Judgment, same court (Peter J. Benitez, J. at suppression hearing; Lester Adler, J. at plea and sentencing), rendered March 2, 2016, convicting defendant upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree, and sentencing him to a concurrent term of IV2 years, unanimously affirmed.

With regard to the trial conviction, the court properly denied defendant’s speedy trial motion. Defendant did not meet his burden of demonstrating that the People’s statement of readiness, which is “presumed truthful and accurate,” was illusory (People v Brown, 28 NY3d 392, 405 [2016]). The record supports the reasonable inference that the prosecutor had reestablished contact with the complainant at the time that he filed the off-calendar statement of readiness.

The court properly denied defendant’s suppression motion. As to the warrantless arrest of defendant, the People showed that the officers had obtained voluntary consent to enter the apartment from a person with the requisite authority (see People v Cosme, 48 NY2d 286, 290 [1979]). Neither the testimony of defendant nor the testimony of the detective gives rise to an inference that the person had submitted to coercion by the police (see People v Gonzalez, 39 NY2d 122, 128 [1976]).

Accepting the hearing court’s credibility determinations (see People v Prochilo, 41 NY2d 759 [1977]), the People also met their burden of demonstrating that defendant waived his Miranda rights and made the written statement voluntarily. The court properly permitted the People to cross-examine defendant on the substance of the written statement, as defendant opened the door to the inquiry by testifying on direct examination that the detective interrogating him had rejected his initial statement and coerced him into writing the subsequent inculpatory statement (see People v Darrett, 2 AD3d 16, 20-21 [1st Dept 2003]; People v Huntley, 46 Misc 2d 209, 211-212 [Sup Ct, NY County 1965], affd 27 AD2d 904 [1st Dept 1967], affd 21 NY2d 659 [1967]).

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). The element of serious physical injury (Penal Law § 10.00 [10]) required for the assault convictions (Penal Law § 120.10 [1], [3]) was established by evidence showing that four years after the complainant was struck by a bullet, he still felt pain and the bullet fragments in his leg and could not engage in sports at the same level as before the incident. This proof sufficiently shows a protracted impairment of health or protracted impairment of the function of a bodily organ to support a finding of serious physical injury (see Penal Law § 10.00 [10]; People v Rosa, 112 AD3d 551 [1st Dept 2013], lv denied 22 NY3d 1202 [2014]; People v Messam, 101 AD3d 407 [1st Dept 2012], lv denied 20 NY3d 1102 [2013]; People v Corbin, 90 AD3d 478, 479 [1st Dept 2011], lv denied 19 NY3d 972 [2012]). Defendant’s intent to cause such injury (Penal Law § 120.10 [1]) is established by his written statement admitting that he fired the gun five times into a crowd of people (see People v Hernandez, 233 AD2d 273 [1st Dept 1996], lv denied 89 NY2d 986 [1997]). His written confession also establishes the element of possession of a loaded firearm required for the weapon possession conviction (see Penal Law § 265.03 [3]).

By failing to object to any of the alleged prejudicial comments by the prosecutor, defendant failed to preserve his challenges to the People’s summation (see People v Flagg, 149 AD3d 513, 514-515 [1st Dept 2017], lv denied 29 NY3d 1079 [2017]), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. The bulk of the challenged remarks were either fair response to defense counsel’s arguments on summation or fair comment on the evidence, and any improprieties were not so egregious as to deprive defendant of a fair trial (see People v D'Alessandro, 184 AD2d 114 [1st Dept 1992], lv denied 81 NY2d 884 [1993]).

Regarding defendant’s plea conviction, the record shows that defendant’s waiver of his right to appeal was not knowing, intelligent and voluntary. Moreover, the waiver contains language that has been found by this Court to render a waiver unenforceable (see People v Powell, 140 AD3d 401 [1st Dept 2016], lv denied 28 NY3d 1074 [2016]). Nevertheless, defendant’s challenge to the suppression ruling is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Since we do not find the officer’s testimony to be manifestly untrue, contrary to common experience, self-contradictory, or tailored, we decline to disturb the court’s conclusion that the testimony was credible (see People v Sanchez, 248 AD2d 306 [1st Dept 1998], lv denied 92 NY2d 930 [1998]; People v Jordan, 242 AD2d 254, 255 [1st Dept 1997], lv denied 91 NY2d 875 [1997]). The officer’s testimony that, while apprehending another individual, he saw defendant sitting on the stairs with a scale and drugs supports the court’s finding of probable cause to arrest defendant and seize the drugs.

Concur—Mazzarelli, Moskowitz, Kahn and Kern, JJ.