PEOPLE v. SAENZ

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Andy SAENZ, Defendant-Appellant.

Decided: March 28, 2006

ANDRIAS, J.P., SULLIVAN, WILLIAMS, GONZALEZ, CATTERSON, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Saadia Aleem of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Dimitri Maisonet of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered March 21, 2003, convicting defendant, after a jury trial, of gang assault in the second degree, and sentencing him to a term of 4 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility, including its evaluation of alleged inconsistencies in the victim's testimony (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112 [1903] ).

 The admission of a nontestifying codefendant's plea allocution violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004].   However, the error was harmless beyond a reasonable doubt.   The plea allocution, which was accompanied by careful limiting instructions that the jury presumably followed, did not implicate defendant and did not strengthen the People's case as to the principal issue, which was defendant's identity;  it simply provided some evidence that there were multiple participants in the crime, an element of several of the charges.   There is no reasonable possibility that this evidence affected the verdict (see People v. Hopkins, 13 A.D.3d 303, 788 N.Y.S.2d 34 [2004], lv. denied 4 N.Y.3d 853, 797 N.Y.S.2d 428, 830 N.E.2d 327 [2005] ).

 The court properly denied defendant's request for a justification charge.   Defendant asserted that in the event the jury concluded he was a participant in the attack on the victim, there was a reasonable view that he only did so to protect his brother.   Although, as the court recognized, defendant was entitled to assert inconsistent defenses, there was no evidentiary basis for a justification charge.   There was no reasonable view of the evidence, viewed most favorably to defendant, that would support a finding that, at the time he took part in attacking the unarmed victim with a broken beer bottle, defendant reasonably believed that the victim was part of a group that allegedly attacked defendant's brother, or, in any event, that anyone in the group was using or was about to use deadly physical force (see People v. Watts, 57 N.Y.2d 299, 301-302, 456 N.Y.S.2d 677, 442 N.E.2d 1188 [1982] ).

 The court properly denied defendant's motion to suppress identification testimony.   Although the victim did not speak English and was assisted by an unidentified woman at the scene in communicating with the police, he spontaneously identified defendant and the codefendants as his attackers through gestures, and his claim that the unidentified woman influenced the victim's identification is speculative (see People v. George, 4 A.D.3d 142, 771 N.Y.S.2d 350 [2004], lv. denied 2 N.Y.3d 799, 781 N.Y.S.2d 298, 814 N.E.2d 470 [2004];  see also People v. Delances, 262 A.D.2d 249, 692 N.Y.S.2d 372 [1999], lv. denied 93 N.Y.2d 1044, 697 N.Y.S.2d 876, 720 N.E.2d 96 [1999] ).   We have considered and rejected defendant's remaining suppression arguments.