Opinion
2013-02900, Ind. No. 2636/09.
09-02-2015
The PEOPLE, etc., respondent, v. Nnonso EKWEGBALU, appellant.
Christopher Renfroe, Forest Hills, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Christopher Renfroe, Forest Hills, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered February 13, 2013, convicting him of manslaughter in the first degree, assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction of assault in the first degree to attempted assault in the first degree, and by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the conviction of attempted assault in the first degree.
Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of manslaughter in the first degree and criminal possession of a weapon in the second degree, under an acting-in-concert theory (see Matter of Juan J., 81 N.Y.2d 739, 593 N.Y.S.2d 768, 609 N.E.2d 121 ; People v. Allah, 71 N.Y.2d 830, 832, 527 N.Y.S.2d 731, 522 N.E.2d 1029 ; Matter of Tatiana N., 73 A.D.3d 186, 190–191, 899 N.Y.S.2d 21 ). 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, 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 testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 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 finding the defendant guilty of manslaughter in the first degree and criminal possession of a weapon 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 ). Contrary to the defendant's contention, the fact that he was acquitted of criminal possession of a weapon in the second degree under count 11 of the indictment did not undermine the sufficiency or weight of the evidence supporting the jury's convictions of criminal possession of a weapon in the second degree under count 10 of the indictment or manslaughter in the first degree (see People v. Mazyck, 118 A.D.3d 728, 987 N.Y.S.2d 95 ; see also People v. Abraham, 22 N.Y.3d 140, 146–147, 978 N.Y.S.2d 723, 1 N.E.3d 797 ; People v. Rayam, 94 N.Y.2d 557, 562–563, 708 N.Y.S.2d 37, 729 N.E.2d 694 ; People v. Alcindor, 118 A.D.3d 621, 988 N.Y.S.2d 619 ).
The defendant's contention that the evidence was legally insufficient to establish that the victim sustained a “serious physical injury,” as required for the conviction of assault in the first degree (Penal Law §§ 10.00[10] ; 120.10[1] ), 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 ). However, upon reviewing this contention in the interest of justice (see CPL 470.15[3][c] ; People v. Ragguete, 120 A.D.3d 717, 991 N.Y.S.2d 131 ; People v. Mazariego, 117 A.D.3d 1082, 986 N.Y.S.2d 235 ), we find that the evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), was not legally sufficient to establish the defendant's guilt of assault in the first degree. The People failed to demonstrate beyond a reasonable doubt that the victim's gunshot wound created “a substantial risk of death,” or caused “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10] ; see People v. Nimmons, 95 A.D.3d 1360, 1360–1361, 945 N.Y.S.2d 358 ; People v. Tucker, 91 A.D.3d 1030, 1031–1032, 936 N.Y.S.2d 386 ; People v. Horton, 9 A.D.3d 503, 504–505, 780 N.Y.S.2d 654 ). Nevertheless, the evidence presented at trial established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “ dangerously near” to committing the completed crime (People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694 [internal quotation marks omitted]; see Penal Law §§ 110.00, 120.10[1] ; People v. Ragguete, 120 A.D.3d at 717, 991 N.Y.S.2d 131 ; People v. Gray, 30 A.D.3d 771, 773, 816 N.Y.S.2d 609 ). Accordingly, we modify the judgment by reducing the defendant's conviction of assault in the first degree to attempted assault in the first degree, and we remit the matter to the Supreme Court, Queens County, for sentencing on the conviction of attempted assault in the first degree (see People v. Ragguete, 120 A.D.3d 717, 991 N.Y.S.2d 131 ).
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in denying his motion, made during the trial, to reopen the suppression hearing. The defendant failed to demonstrate that he discovered additional facts, not discoverable with reasonable diligence before the determination of the motion, that would have affected the court's ultimate determination of his suppression motion (see CPL 710.40[4] ; People v. Jackson, 97 A.D.3d 693, 694, 947 N.Y.S.2d 613 ; People v. Cepeda, 48 A.D.3d 294, 295, 851 N.Y.S.2d 505 ; People v. Musgrove, 261 A.D.2d 640, 641, 691 N.Y.S.2d 74 ; People v. Accardi, 222 A.D.2d 596, 597, 635 N.Y.S.2d 652 ).
The defendant also contends that the Supreme Court violated CPL 310.30 and committed reversible error in its handling of the jury's requests for readbacks of testimony and certain jury notes concerning the court's instruction as to murder in the second degree. These contentions are unpreserved for appellate review (see CPL 470.05[2] ; People v. Alcide, 21 N.Y.3d 687, 694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ; People v. Ramirez, 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791 ; People v. Proctor, 104 A.D.3d 1290, 1291, 960 N.Y.S.2d 833 ) and, in any event, are without merit (see People v. Malloy, 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237 ; People v. Rivera, 41 A.D.3d 347, 838 N.Y.S.2d 564 ; People v. Gauze, 3 A.D.3d 538, 538, 770 N.Y.S.2d 749 ; People v. Chavez, 280 A.D.2d 350, 350, 721 N.Y.S.2d 25 ; People v. Hollis, 216 A.D.2d 17, 628 N.Y.S.2d 264 ). Moreover, the court's instruction on accessorial liability was appropriate, and the Supreme Court meaningfully responded to a jury note with respect thereto by rereading its original instruction (see People v. Slacks, 90 N.Y.2d 850, 851, 660 N.Y.S.2d 863, 683 N.E.2d 769 ; People v. Malloy, 55 N.Y.2d at 302–303, 449 N.Y.S.2d 168, 434 N.E.2d 237 ; People v. Crosby, 33 A.D.3d 719, 720, 821 N.Y.S.2d 908 ; People v. Crayton, 278 A.D.2d 64, 718 N.Y.S.2d 299 ).
In light of our modification of the judgment, the defendant's contention that the aggregate sentence imposed was excessive has been rendered academic.
The defendant's remaining contentions are without merit.