Opinion
2012-03242 2013-09673 Ind. No. 2228/10.
12-02-2015
The PEOPLE, etc., respondent, v. Eddie VASQUEZ, appellant.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser and A. Alexander Donn of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser and A. Alexander Donn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
Opinion
Appeals by the defendant (1) from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered March 28, 2012, convicting him of assault in the second degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court dated August 2, 2013, which denied, without a hearing, his motion to vacate his judgment of conviction pursuant to CPL 440.10.
ORDERED that the judgment and the order are affirmed.
The defendant failed to preserve for appellate review his contention that his convictions of assault in the second degree (Penal Law § 120.052 ) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 2 ) were not based on legally sufficient evidence (see CPL 470.052; People v. Carncross, 14 N.Y.3d 319, 324–325, 901 N.Y.S.2d 112, 927 N.E.2d 532; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Bynum, 70 N.Y.2d 858, 859, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Squires, 68 A.D.3d 900, 889 N.Y.S.2d 492). In any event, viewing the evidence in the light most favorable to the prosecution (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 his guilt beyond a reasonable doubt (see People v. Hierro, 122 A.D.3d 420, 994 N.Y.S.2d 614; People v. Elie, 110 A.D.3d 1003, 973 N.Y.S.2d 358; People v. Jones, 110 A.D.3d 493, 973 N.Y.S.2d 136; People v. Oglesby, 15 A.D.3d 419, 789 N.Y.S.2d 536). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.155; 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 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).
The Supreme Court properly denied the defendant's request to charge the jury with assault in the third degree (Penal Law § 120.001, 2, 3 ), as a lesser included offense of assault in the second degree (CPL 1.2037; 300.501; see People v. Conway, 6 N.Y.3d 869, 871–872, 816 N.Y.S.2d 731, 849 N.E.2d 954; People v. Rodriguez, 73 A.D.3d 815, 816, 900 N.Y.S.2d 402; People v. House, 278 A.D.2d 244, 245, 717 N.Y.S.2d 273; People v. Long, 259 A.D.2d 634, 687 N.Y.S.2d 391; see generally People v. James, 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261; People v. Barney, 99 N.Y.2d 367, 371, 756 N.Y.S.2d 132, 786 N.E.2d 31; People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275).
The Supreme Court properly granted the defendant's request to charge the jury with the defense of justification only to the extent of instructing as to justification when confronted with deadly physical force (see People v. Lugg, 124 A.D.3d 679, 680, 998 N.Y.S.2d 459; People v. Soriano, 121 A.D.3d 1419, 1423, 995 N.Y.S.2d 387; People v. Taylor, 118 A.D.3d 1044, 1047–1048, 986 N.Y.S.2d 711).
The Supreme Court properly denied the defendant's request for an intoxication charge (see People v. Sirico, 17 N.Y.3d 744, 745, 929 N.Y.S.2d 14, 952 N.E.2d 1006; People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954; People v. Rodriguez, 76 N.Y.2d 918, 920–921, 563 N.Y.S.2d 48, 564 N.E.2d 658; cf. People v. Velcher, 116 A.D.3d 799, 982 N.Y.S.2d 905).
The defendant failed to preserve for appellate review his contention that the Supreme Court erred in allowing the People to elicit testimony from one of their witnesses that the defendant struck his girlfriend, in the presence of their daughter (see CPL 470.052 ). In any event, this contention is without merit. The subject testimony was relevant (see People v. Mateo, 2 N.Y.3d at 424–425, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Buie, 86 N.Y.2d 501, 509, 634 N.Y.S.2d 415, 658 N.E.2d 192; People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915) to the charge of endangering the welfare of a child (Penal Law § 260.101; see People v. Johnson, 95 N.Y.2d 368, 371–372, 718 N.Y.S.2d 1, 740 N.E.2d 1075; People v. Simmons, 92 N.Y.2d 829, 830, 677 N.Y.S.2d 58, 699 N.E.2d 417), of which the defendant was acquitted, and the probative value of the testimony outweighed the potential prejudice to the defendant. Any error in failing to give a limiting instruction to the jury was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to the defendant's convictions of assault in the second degree and criminal possession of a weapon in the fourth degree (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Willis, 69 A.D.3d 966, 893 N.Y.S.2d 264).
The defendant's contention that the prosecutor committed misconduct during her cross-examination of the defense witness is unpreserved for appellate review (see CPL 470.052 ) and, in any event, without merit (see People v. Walker, 83 N.Y.2d 455, 461, 611 N.Y.S.2d 118, 633 N.E.2d 472; Badr v. Hogan, 75 N.Y.2d 629, 634, 555 N.Y.S.2d 249, 554 N.E.2d 890; People v. Schwartzman, 24 N.Y.2d 241, 244, 299 N.Y.S.2d 817, 247 N.E.2d 642; People v. Jones, 193 A.D.2d 696, 697, 598 N.Y.S.2d 40).
The defendant's challenges to the prosecutor's summation are unpreserved for appellate review (see CPL 470.052; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89; People v. Martin, 116 A.D.3d 981, 983 N.Y.S.2d 813; People v. Stewart, 89 A.D.3d 1044, 933 N.Y.S.2d 112; People v. Paul, 82 A.D.3d 1267, 919 N.Y.S.2d 393) and, in any event, without merit. The challenged comments were “within the broad bounds of rhetorical comment permissible in closing arguments, fair response to arguments made by defense counsel in summation, and fair comment upon the evidence” (People v. Cartagena, 126 A.D.3d 913, 914, 7 N.Y.S.3d 150; see People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Perez, 120 A.D.3d 514, 990 N.Y.S.2d 590; People v. Hutchinson, 106 A.D.3d 1105, 965 N.Y.S.2d 612; People v. Barnes, 33 A.D.3d 811, 812, 826 N.Y.S.2d 283).
In moving to vacate a judgment of conviction, a defendant must “come forward with allegations that raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction” (People v. Waymon, 65 A.D.3d 708, 709, 883 N.Y.S.2d 911; see CPL 440.10; 440.304[d] [i]; People v. Session, 34 N.Y.2d 254, 255–256, 357 N.Y.S.2d 409, 313 N.E.2d 728). “Mere conclusory allegations of ultimate facts are insufficient to warrant a hearing” (People v. Waymon, 65 A.D.3d at 709, 883 N.Y.S.2d 911; see People v. Brown, 56 N.Y.2d 242, 246–247, 451 N.Y.S.2d 693, 436 N.E.2d 1295). Here, in the absence of any evidence supporting the claims set forth in the defendant's affidavit regarding alleged plea offers about which defense counsel purportedly failed to inform him or defense counsel's rejection of his request to call an expert medical witness, the Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPL 440.10 (see CPL 440.304[d][i]; People v. Brown, 56 N.Y.2d at 246–247, 451 N.Y.S.2d 693, 436 N.E.2d 1295; People v. Session, 34 N.Y.2d at 256, 357 N.Y.S.2d 409, 313 N.E.2d 728; People v. Waymon, 65 A.D.3d at 709, 883 N.Y.S.2d 911).