PEOPLE v. GOMEZ

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

The PEOPLE, etc., Respondent, v. Rafael GOMEZ, Appellant.

Decided: September 08, 2003

A. GAIL PRUDENTI, P.J., SANDRA L. TOWNES, WILLIAM F. MASTRO and REINALDO E. RIVERA, JJ. Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Donna Aldea of counsel;  Daniel Bresnahan on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosenzweig, J.), rendered September 29, 2000, convicting him of robbery in the first degree (four counts), robbery in the second degree (four counts), burglary in the first degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The defendant's contention that the evidence was legally insufficient to prove his identity as the perpetrator is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Washington, 305 A.D.2d 433, 758 N.Y.S.2d 521).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The defendant's contention that the court's charge on identification was inadequate is without merit.   Although desirable, a detailed charge on the issue of identification is not required as a matter of law (see People v. Knight, 87 N.Y.2d 873, 638 N.Y.S.2d 938, 662 N.E.2d 256;  People v. Whalen, 59 N.Y.2d 273, 464 N.Y.S.2d 454, 451 N.E.2d 212).   Where, as here, “[a] Judge who gives a general instruction on weighing witnesses' credibility and who states that identification must be proven beyond a reasonable doubt has made an accurate statement of the law” (People v. Whalen, supra at 279, 464 N.Y.S.2d 454, 451 N.E.2d 212).

 The defendant's contention that the trial court erred in replacing juror number seven with an alternate juror without his written consent is without merit.   Based on the resettled record, the jury had not yet begun to deliberate (see CPL 270.35[1] ).   However, the defendant's conviction must be reversed, and a new trial ordered, because the trial court replaced juror number four after deliberations had commenced, with an alternate juror who had previously been discharged from jury service.  CPL 270.35(1) directs the court to declare a mistrial when a juror is discharged during deliberations and an alternate juror is unavailable as a replacement. Accordingly, the trial court erred in failing to declare a mistrial.

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