THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JAMES HURST DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by reversing that part convicting defendant of assault in the second degree, granting the part of the omnibus motion seeking preclusion of the identification evidence, and granting a new trial on count 3 of the indictment and by reducing the sentences of imprisonment imposed for burglary in the first degree under counts 1 and 2 of the indictment to determinate terms of 15 years, and as modified the judgment is affirmed.

Memorandum: On appeal from a judgment convicting him following a jury trial of two counts of burglary in the first degree (Penal Law § 140.30 [2], [3]) and one count of assault in the second degree (§ 120.05 [2]), defendant contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Preliminarily, with respect to the burglary counts, we note that the People had no burden to prove defendant knew that a codefendant was armed with a dangerous instrument or that the codefendant intended to injure the victim with such instrument inasmuch as such knowledge and intent are not elements of burglary in the first degree. We conclude that the evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction with respect to each count (see generally People v Bleakley, 69 NY2d 490, 495 [1987]) and, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally id.).

We reject defendant's further contention that County Court erred in admitting in evidence a yellow-handled hatchet. Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Scarola, 71 NY2d 769, 777 [1988]). “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact” (id.). Here, one of the codefendants testified that he saw the yellow-handled hatchet in defendant's car as he and defendant drove to the victim's apartment, and an eyewitness testified that they had “[m]iniature hatchets” or “[l]ittle mini axes” when they approached the apartment. The victim also testified that at least one of the three men who entered his apartment had “like a hatchet or a machete” in hand. The same hatchet that had been in defendant's car was thereafter located at the testifying codefendant's residence, where that codefendant and defendant had fled after the crimes. We conclude that the hatchet was thus relevant to corroborate the testifying codefendant's testimony and to establish the identity of defendant as one of the perpetrators of the crimes (see generally People v Williams, 150 AD3d 1684, 1684-1685 [4th Dept 2017], lv denied 29 NY3d 1095 [2017], reconsideration denied 30 NY3d 954 [2017]).

Although relevant evidence may still be deemed inadmissible if its “probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (Scarola, 71 NY2d at 777), defendant did not object to the admission of the hatchet on that basis. As a result, defendant failed to preserve that part of his contention for our review (see People v Cullen, 110 AD3d 1474, 1475 [4th Dept 2013], affd 24 NY3d 1014 [2014]; People v Harrell, 235 AD3d 1294, 1296 [4th Dept 2025], lv denied 43 NY3d 1009 [2025]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

We agree with defendant, however, that the court erred in refusing to preclude the victim from offering identification testimony at trial. The People failed to provide CPL 710.30 notice to defendant that the victim identified him to the police and, contrary to the court's determination, the evidence at the hearing failed to establish that the identification was confirmatory (see generally People v Rodriguez, 79 NY2d 445, 450-452 [1992]).

An identification is considered confirmatory only where, “as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” (id. at 450). “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” (id.). The exception “does not apply where the familiarity emanates from a brief encounter” (id.).

Here, the victim testified at the Rodriguez hearing that he had met defendant only once before the crimes were committed, and then for only a few minutes. Under the circumstances, it cannot be said, as a matter of law, that there was “ ‘little to no risk’ ” of misidentification resulting from an unduly suggestive photo array or identification procedure (id.; see People v Alcaraz-Ubiles, 239 AD3d 1481, 1483-1484 [4th Dept 2025]; see generally People v Boyer, 6 NY3d 427, 431-432 [2006]). Of course, because the People did not comply with the notice requirements of CPL 710.30 and defendant thus did not seek suppression of the identification evidence, there was no hearing to determine whether the identification was affected by an unduly suggestive photo array or identification procedure.

We nevertheless conclude that the error in refusing to preclude the victim's identification testimony is harmless with respect to the two counts of burglary in the first degree. At trial, the People presented overwhelming evidence that defendant lacked permission to enter the victim's apartment, he entered with the intent of committing a crime therein, one of his codefendants stabbed or slashed the victim with a dangerous instrument, and that same codefendant caused physical injury to the victim (see generally Penal Law § 140.30 [2], [3]). We further conclude that there is no reasonable possibility that the jury would have acquitted defendant of those charges had the court precluded the challenged identification testimony (see generally People v Crimmins, 36 NY2d 230, 237 [1975]).

We cannot reach the same conclusion with respect to count 3, charging assault in the second degree under Penal Law § 120.05 (2). The People were required to prove, among other things, that defendant shared the codefendant's intent to cause physical injury to the victim, and they proved beyond a reasonable doubt that defendant shared the requisite intent by presenting evidence that defendant punched the victim upon entering the apartment, albeit with no discernable effect. Overwhelming proof of guilt, however, is a greater burden than proof beyond a reasonable doubt (see People v Exford, 234 AD3d 1252, 1254 [4th Dept 2025]) and, in our view, the evidence as it relates to the intent element of assault in the second degree does not satisfy that burden. The harmless error doctrine is thus inapplicable with respect to the assault charge (see generally Crimmins, 36 NY2d at 242). We therefore modify the judgment by reversing that part convicting defendant of assault in the second degree, granting the part of the omnibus motion seeking preclusion of the identification testimony, and granting defendant a new trial on count 3 of the indictment.

We further agree with defendant that the sentence on the two burglary counts is unduly harsh and severe. Defendant was sentenced as a second felony offender to concurrent determinate terms of 20 years of imprisonment on the two counts of burglary in the first degree. Prior to trial, the People offered defendant a five-year term of imprisonment if he pleaded guilty without a cooperation agreement. Defendant rejected that plea offer and received a sentence with a prison term of 20 years, which was four times greater than the pretrial offer and the same term that was imposed on the codefendant who stabbed the victim. In contrast, the codefendant who agreed to cooperate with the prosecution and testified against defendant received a five-year term of imprisonment. Under the circumstances, including the fact that defendant himself caused no injuries to the victim, we further modify the judgment as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]; People v Delgado, 80 NY2d 780, 783 [1992]) by reducing the sentences of imprisonment imposed for burglary in the first degree under counts 1 and 2 of the indictment to determinate terms of 15 years, followed by the five-year period of postrelease supervision imposed by the court.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court