Opinion
No. 315 Ind No. 3502/17 Case No. 2020-00866
05-25-2023
The People of the State of New York, Respondent, v. Hernando Ruiz, Defendant-Appellant.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), and for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Jenay Nurse Guilford, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), and for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.
Before: Kapnick, J.P., Friedman, Gesmer, Mendez, Pitt-Burke, JJ.
Judgment, Supreme Court, New York County (Steven M. Statsinger, J. at motion to controvert search warrant; Robert M. Mandelbaum, J. at jury trial and sentencing), rendered December 20, 2019, convicting defendant of robbery in the second degree (two counts), and sentencing him, as a persistent violent felony offender, to concurrent terms of 16 years to life, 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 [2007]). There is no basis for disturbing the jury's credibility determinations, including the jury's resolution of any discrepancies in the victim's statements about the incident (People v Sanchez, 32 N.Y.3d 1021, 1023 [2018]; see also People v Romero, 7 N.Y.3d 633, 646 [2006]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]). Although no witness identified the perpetrators and there was no surveillance video of the robbery itself, defendant's participation in the robbery with another person was established by, among other things, surveillance video footage depicting defendant's conduct before and after the robbery, the victim's account of being attacked by two men, defendant's phone found at the scene, a bystander's observation that a fleeing man dropped that phone, and evidence of defendant's consciousness of guilt such as changing his clothing and shoes immediately after the robbery. Defendant testified that he watched his companion, acting alone, rob the victim. However, the victim's testimony was explicit that he was robbed by two men, each taking or attempting to take different items of jewelry. The evidence also established the physical injury element required for one of the two counts (see Penal Law § 160.10[2][a]), because the victim's testimony supported the conclusion that while he sustained relatively minor injuries (People v Kearse, 214 A.D.3d 438 [1st Dept 2023]), his pain was "more than slight or trivial" (People v Chiddick, 8 N.Y.3d 445, 447 [2007]; see also People v Guidice, 83 N.Y.2d 630, 636 [1994]).
Any error in the court's denial of defendant's motion to controvert a warrant to search his phone was harmless, because the People have proven "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (Chapman v California, 386 U.S. 18, 24 [1967]; see also People v Crimmins, 36 N.Y.2d 230, 237 [1975]). Defendant does not challenge the portion of the search warrant that caused the phone to be identified as belonging to him, but challenges the warrant only to the extent it led to the admission of text messages from his wife, urging him to obtain money. However, these texts only provided some evidence of motive beyond the general motive to obtain property that can be inferred in any robbery. Furthermore, the evidence was overwhelming.
The court's interested witness charge as to defendant's testimony, which generally followed the Criminal Jury Instructions, was not constitutionally deficient (see People v Torres, 179 A.D.3d 543, 545 [1st Dept 2020], lv denied 35 N.Y.3d 995 [2020]). "The charge contained no language about defendant having a motive to lie," and "nothing in the charge assumed or suggested that he was guilty" (People v Blake, 39 A.D.3d 402, 403 [1st Dept 2007], lv denied 9 N.Y.3d 873 [2007]; see also Reagan v United States, 157 U.S. 301, 305-311 [1895]).
Defendant's constitutional challenges to his mandatory minimum sentence as a persistent violent felony offender are unpreserved (see People v Pena, 28 N.Y.3d 727, 730 [2017]), and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits (see People v Broadie, 37 N.Y.2d 100, 110-111 [1975], cert denied 423 U.S. 950 [1975]; see also Ewing v California, 538 U.S. 11, 29-30 [2003]; Rummel v Estelle, 445 U.S. 263, 276 [1980]). "In weighing the gravity of [defendant's] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism" (Ewing, 538 U.S. at 29).