PEOPLE v. MARTINEZ JIMINEZ (2019)

Judgment, Supreme Court, New York County (Gilbert C. Hong, J. at suppression hearing; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered April 21, 2017, convicting defendant of murder in the second degree and assault in the second degree, and sentencing him to an aggregate term of 25 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, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). There is no basis for disturbing the jury's determinations concerning credibility and identification. Defendant's homicidal intent could be reasonably inferred from his acts of repeatedly kicking and stomping the victim in the head and body (see e.g.People v. Davis, 149 A.D.3d 451, 452, 52 N.Y.S.3d 33 [1st Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017]).

The court properly denied defendant's suppression motion. The police had reasonable suspicion justifying a stop, and their initial stop of defendant did not constitute an arrest requiring probable cause. Late at night, the police received a radio message that a fight was in progress between two men at a bus stop, and that the 911 caller was at the scene and still on the phone. Upon arriving a few minutes later, they saw a man on a phone pointing toward the bus stop saying, “[T]here it is, there it is.” Defendant, the only other person in view, was running away from the bus stop. This combination of circumstances provided reasonable suspicion that defendant was involved in an assault (see e.g.People v. Cumberbacths, 250 A.D.2d 505, 674 N.Y.S.2d 7 [1st Dept. 1998], lv denied 92 N.Y.2d 895, 680 N.Y.S.2d 59, 702 N.E.2d 844 [1998]; see also People v. Rosa, 67 A.D.3d 440, 889 N.Y.S.2d 140 [1st Dept. 2009], lv denied 14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110 [2010] [pointing as significant nonverbal accusation] ).

We need not reach the issue of whether the court providently exercised its discretion in admitting testimony that the victim said, in effect, “Help, this guy wants to kill me.” Any error in the admission of such testimony was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

The record does not establish that defendant's sentence was based on any improper criteria, and we perceive no basis for reducing the sentence.