PEOPLE v. COREA (2006)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered May 17, 2002, convicting him of gang assault in the first degree and assault in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant's contention that the People failed to adduce legally sufficient evidence of his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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 the defendant's guilt beyond a reasonable doubt (see People v. Adames, 308 A.D.2d 454, 764 N.Y.S.2d 200).

The prosecutor's opening statement adequately described what the People intended to prove, and properly prepared the jury to resolve the factual issues at the trial (see CPL 260.30[3];  People v. Vera, 11 A.D.3d 716, 784 N.Y.S.2d 562;  see also People v. Kurtz, 51 N.Y.2d 380, 384, 434 N.Y.S.2d 200, 414 N.E.2d 699, cert. denied 451 U.S. 911, 101 S.Ct. 1983, 68 L.Ed.2d 301;  People v. Etoria, 266 A.D.2d 559, 699 N.Y.S.2d 121;  People v. Carter, 248 A.D.2d 722, 670 N.Y.S.2d 542;  People v. Vulpis, 173 A.D.2d 582, 570 N.Y.S.2d 165;  People v. Brown, 158 A.D.2d 461, 550 N.Y.S.2d 913, cert. denied 498 U.S. 870, 111 S.Ct. 190, 112 L.Ed.2d 153;  People v. Tzatzimakis, 150 A.D.2d 512, 541 N.Y.S.2d 106).

 The trial court properly denied the defendant's motion to set aside the verdict pursuant to CPL 330.30(3) based on newly-discovered evidence, as the defendant failed to establish that the evidence could not have been produced at the trial with due diligence and was of such a character as to create a probability that, had it been received in evidence, the verdict would have been more favorable to the defendant (see CPL 330.30[3];  People v. Salemi, 309 N.Y. 208, 128 N.E.2d 377, cert. denied 350 U.S. 950, 76 S.Ct. 325, 100 L.Ed. 827;  People v. Waller, 4 A.D.3d 440, 771 N.Y.S.2d 363;  People v. James, 299 A.D.2d 424, 749 N.Y.S.2d 433;  People v. Pacheco, 293 A.D.2d 629, 740 N.Y.S.2d 245;  People v. Wells, 289 A.D.2d 599, 735 N.Y.S.2d 815;  People v. Matthew, 274 A.D.2d 485, 711 N.Y.S.2d 35).   The newly-discovered evidence proffered by the defendant merely impeached and contradicted former evidence, and thus did not warrant the granting of a new trial (see People v. Paasewe, 276 A.D.2d 807, 715 N.Y.S.2d 703).

 The defendant's acquittal of assault in the first degree and assault in the second degree was not repugnant to his conviction of gang assault in the first degree, because the acquittal did not necessarily negate the aggravating element of “aided by two or more persons actually present” (Penal Law § 120.07).   Upon our examination of the essential elements of assault in the first degree (see Penal Law § 120.10[1] ) and assault in the second degree (see Penal Law § 120.05[2] ) we find that the jury did not reach “an inherently self-contradictory verdict” in acquitting the defendant of those charges while convicting him of gang assault in the first degree and assault in the third degree (People v. Tucker, 55 N.Y.2d 1, 8, 447 N.Y.S.2d 132, 431 N.E.2d 617;  see also People v. Loughlin, 76 N.Y.2d 804, 806, 559 N.Y.S.2d 962, 559 N.E.2d 656).   However, the charge of assault in the third degree should have been dismissed as a lesser-included offense and an inclusory concurrent count of gang assault in the first degree (see CPL 1.20[37];  300.40[3] [b];  cf. People v. King, 265 A.D.2d 678, 697 N.Y.S.2d 371).   We reach this contention notwithstanding that the issue was unpreserved for appellate review (see People v. Ford, 62 N.Y.2d 275, 282-283, 476 N.Y.S.2d 783, 465 N.E.2d 322;   People v. Feliciano, 308 A.D.2d 459, 460, 764 N.Y.S.2d 196).

 Contrary to the arguments raised by the defendant in his supplemental pro se brief, he was not denied the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also People v. Taylor, 1 N.Y.3d 174, 770 N.Y.S.2d 711, 802 N.E.2d 1109;  People v. Ellis, 81 N.Y.2d 854, 597 N.Y.S.2d 623, 613 N.E.2d 529;  People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  People v. Rogers, 5 A.D.3d 871, 873, 774 N.Y.S.2d 93;  People v. Cooper, 213 A.D.2d 196, 624 N.Y.S.2d 3;  People v. Smith, 146 A.D.2d 588, 589, 536 N.Y.S.2d 511).   Nor was the lineup in which the defendant was identified by two eyewitnesses unduly suggestive (see People v. Green, 14 A.D.3d 578, 789 N.Y.S.2d 184;  lv. denied 4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679;  People v. Nieves, 183 A.D.2d 854, 856, 584 N.Y.S.2d 585;  see also People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  People v. Mason, 138 A.D.2d 411, 412, 525 N.Y.S.2d 694).   The participants in the lineup were similar to the defendant in appearance, and any minor differences between them were insufficient to create a substantial likelihood of misidentification (see People v. Green, supra;  People v. Nieves, supra;  People v. Ramos, 170 A.D.2d 186, 565 N.Y.S.2d 87;  People v. Mason, supra ).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The remaining arguments raised by the defendant in his supplemental pro se brief are unpreserved for appellate review (see People v. Ross, 21 N.Y.2d 258, 262, 287 N.Y.S.2d 376, 234 N.E.2d 427;  People v. Delosanto, 307 A.D.2d 298, 763 N.Y.S.2d 629) and, in any event, are without merit (see People v. Ramos, 99 N.Y.2d 27, 32-33, 750 N.Y.S.2d 821, 780 N.E.2d 506;  People v. Bertolo, 65 N.Y.2d 111, 116, 490 N.Y.S.2d 475, 480 N.E.2d 61;  People v. Sears, 9 A.D.3d 472, 780 N.Y.S.2d 178;  People v. Feneque, 133 A.D.2d 646, 519 N.Y.S.2d 827).