People v. Kahson B.

2017 NY Slip Op 1265, 147 A.D.3d 538, 47 N.Y.S.3d 290

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2017
• Docket: 3630/07
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Analisa Torres, J.), rendered December 21, 2009, convicting defendant, after a jury trial, of assault in the second degree, adjudicating him a youthful offender, and sentencing him to a term of five years’ probation, affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). The complainant identified defendant in photo and lineup identification procedures that were properly conducted. We reject the dissent’s contention that we should find, contrary to the jury’s finding, that the complainant was unable to correctly identify defendant. We disagree with any suggestion that, based on the complainant’s condition due to the assault he suffered, causing some loss of consciousness, his identification is not credible. There is nothing the dissenting justice points to in the record that would indicate that the complainant lost consciousness at the time he first saw his attacker.

In the cases cited by the dissent in which complainants’ identifications were rejected and convictions reversed as a result, the reasons for completely discounting the identifications were far more compelling. In People v Bailey (102 AD3d 701 [2d Dept 2013]) the complainant was admittedly intoxicated, was unable to remember prominent features of the defendant’s face, acknowledged that he had been looking mostly at a gun and had not had a good opportunity to look at the shooter, and, in addition, the identification took place more than two months after the crime. In People v Russell (99 AD3d 211 [1st Dept 2012]), there were numerous significant, and worrisome, discrepancies between the complainant’s narrative and what was seen on the surveillance video, and a strong alibi defense along with a reasonable alternative explanation for why the complainant had recognized the defendant.

Those grounds for undercutting one-witness identifications are not comparable to the dizziness and loss of consciousness caused by the subject assault, and the limited nature of the complainant’s two opportunities to look directly at his attacker. Our system of criminal justice relies on victims of violence identifying their attackers when they are able to do so. It would be ironic indeed if the severity of an attack and the resulting injuries were to prompt courts to treat the subsequent identification as unworthy of belief, despite the complainant’s certainty. Of course, the defense is entitled to question an identification based on the complainant’s compromised condition caused by the attack. However, that argument did not sway the jury here, and upon our review of the evidence at trial, it does not appear that the complainant was unable to make an identification.

Any inconsistencies in the complainant’s testimony were minor, possibly due to limitations in his English skills, and did not undermine his overall credibility. Nor are grounds to upset the verdict presented by jurors’ post-verdict assertions of escalating tempers, shouting, and bad conduct by jurors during deliberations (see People v Redd, 164 AD2d 34 [1st Dept 1990]). In addition, the verdict may not be revisited based on jurors’ change of heart after the verdict was announced, when defendant cried and denied committing the crime, or based on jurors’ belated realization that the crime of which they convicted defendant was a felony rather than a misdemeanor. A jury verdict may only be impeached upon a showing of improper influence (see People v Brown, 48 NY2d 388 [1979]), which was not established here.

Concur — Friedman, J.P., Sweeny, Saxe and Kapnick, JJ.