Opinion
2019–05517 Ind. No. 17–00093
04-06-2022
The PEOPLE, etc., respondent, v. Christopher LOPES, appellant.
Judith E. Permutt, Mount Vernon, NY, for appellant. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfranceso and William C. Milaccio of counsel), for respondent.
Judith E. Permutt, Mount Vernon, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfranceso and William C. Milaccio of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Westchester County (Larry J. Schwartz, J.), rendered December 12, 2018, convicting him of assault in the first degree, robbery in the first degree, gang assault in the second degree, and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the conviction of assault in the first degree under count 1 of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly determined that the police officers had probable cause to arrest him based upon a radio broadcast of a motor vehicle accident with a possible robbery and assault in progress, their observations of the defendant and the codefendant holding the complainant down and of the defendant cocking his arm as if to strike the complainant, the complainant's statement identifying the codefendant as one of the individuals who assaulted and robbed him, and the officers' observations of blood on the defendant's clothing (see People v. Edmondson, 191 A.D.3d 1015, 1016, 142 N.Y.S.3d 198 ; People v. Sanders, 239 A.D.2d 528, 658 N.Y.S.2d 958 ; People v. Jones, 234 A.D.2d 1002, 651 N.Y.S.2d 808 ; People v. Pascual, 173 A.D.2d 746, 747, 570 N.Y.S.2d 623 ). The court also properly denied that branch of the defendant's omnibus motion which was to suppress the clothing he was wearing at the time of his arrest. The testimony adduced at the suppression hearing established that the clothing was properly seized pursuant to the plain view doctrine (see People v. Brown, 96 N.Y.2d 80, 725 N.Y.S.2d 601, 749 N.E.2d 170 ; People v. Edmondson, 191 A.D.3d at 1016, 142 N.Y.S.3d 198 ; People v. Oden, 150 A.D.3d 1269, 1270, 53 N.Y.S.3d 545 ).
The defendant's contention that there was legally insufficient evidence to support the convictions is only partially preserved for appellate review (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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, 348, 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 the 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 of guilt 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 ).
As conceded by the People, and for the reasons set forth in our decision and order on an appeal by the defendant's codefendant (see People v. Edmondson, 191 A.D.3d at 1018, 142 N.Y.S.3d 198 ), the counts of assault in the first degree under count 1 of the indictment ( Penal Law § 120.10[4] ) and robbery in the first degree under count 2 of the indictment ( Penal Law § 160.15[1] ) were multiplicitous (see People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 ; People v. Smalls, 81 A.D.3d 860, 861, 916 N.Y.S.2d 647 ). Accordingly, we vacate the defendant's conviction of assault in the first degree under count 1 of the indictment, vacate the sentence imposed thereon, and dismiss that count of the indictment. The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
BRATHWAITE NELSON, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.