Opinion
1095, 1786/13.
05-10-2016
The PEOPLE of the State of New York, Respondent, v. Robert MEDINA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
MAZZARELLI, J.P., RENWICK, SAXE, GISCHE, KAHN, JJ.
Judgment, Supreme Court, New York County (Charles H. Solomon, J. at suppression hearing; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered January 30, 2014, convicting defendant of robbery in the second degree and sentencing him, as a second violent felony offender, to a term of nine years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence established the element of physical injury (see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ). The victim testified that he was struck with enough force to knock him down, and in addition to an injury to his mouth, which caused him soreness and difficulty eating for three or four days, he had swelling under his eye (see e.g. People v. Mullings, 105 A.D.3d 407, 961 N.Y.S.2d 470 [1st Dept.2013], lv. denied 21 N.Y.3d 945, 968 N.Y.S.2d 7, 990 N.E.2d 141 [2013] ; People v. Deas, 102 A.D.3d 464, 961 N.Y.S.2d 10 [1st Dept.2013], lv. denied 20 N.Y.3d 1097, 965 N.Y.S.2d 793, 988 N.E.2d 531 [2013] ; People v. Mercado, 94 A.D.3d 502, 941 N.Y.S.2d 501 [1st Dept.2012], lv. denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ). The evidence also supports conclusions that defendant took the victim's phone during the attack, and that defendant used force for the purpose of stealing the phone.
We find, however, that the hearing court improperly denied defendant's suppression motion. Once the officers removed the backpack from the already handcuffed defendant and the backpack was within the officer's dominion and control and outside the grabbable area, there was no longer any safety concern present that would have justified a search of its contents. Nonetheless, we find that this error was harmless because the items of defendant's clothing found in the backpack added little to the People's case and could not have affected the verdict (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
By failing to make timely and specific objections, defendant failed to preserve his challenges to the People's comments during the voir dire of the first panel of prospective jurors, and we decline to review them in the interest of justice. As an alternative holding, we find that to the extent there were any improper questions, the court's instructions were sufficient to prevent any prejudice.
We perceive no basis for reducing the sentence.