People v. ColemanPeople v. Coleman
In September 2013, defendant, along with three other individuals, attacked the victim in the middle of the street. Defendant was arrested and charged by indictment with one count of gang assault in the first degree and two counts of assault in the first degree.1 Following a jury trial, defendant was found not guilty on each of the three counts, but was convicted of two lesser included offenses, attempted gang assault in the first degree and attempted assault in the first degree, both class C violent felonies. Defendant was sentenced as a second felony offender to a prison term of 12 years followed by five years of postrelease supervision on each count, with the sentences to be served concurrently. Defendant appeals.
We affirm. Defendant first contends that the verdict is against the weight of the evidence. Specifically, he argues that the evidence did not support a finding of intent to cause serious physical injury. In reviewing whether a conviction is against the weight of the evidence, we first determine whether a different verdict would have been reasonable and, if so, then, “like the trier of fact below, [we] weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citations omitted]; accord People v Lawrence, 141 AD3d 828, 829 [2016], lv denied 28 NY3d 1073 [2016]). In this review, “we necessarily consider whether all of the elements of the charged crimes were proven beyond a reasonable doubt” (People v Thorpe, 141 AD3d 927, 928 [2016], lv denied 28 NY3d 1031 [2016]; see People v Reeves, 124 AD3d 1068, 1068 [2015], lv denied 25 NY3d 1076 [2015]).
As is relevant here, a conviction for gang assault in the first degree requires “intent to cause serious physical injury to another person and when aided by two or more other persons actually present” (
Detective Eric Clifford testified that, during his patrol duties on the day in question, he observed a group of individuals “stomping on top of somebody” in the street and that he recognized defendant as one of the individuals involved. A surveillance camera captured the incident and a recording from that camera was played at trial. The recording shows defendant repeatedly raising his leg and stomping on the victim with his heavy work boots as the victim lay defenseless on the ground. Photographs of the boots were admitted into evidence along with photographs of the victim‘s injuries, which show a laceration above the victim‘s right eye and abrasions about his face. The eyewitness account by Clifford, the video recording of the incident, medical testimony of the responders and the emergency room personnel, and the photographs of the victim‘s
Next we address defendant‘s request that we review documents subpoenaed from the City of Schenectady Police Department to determine whether they should have been disclosed to defendant as Brady material (see Brady v Maryland, 373 US 83, 87-88 [1963]). Upon our own in camera examination, we agree with Supreme Court‘s determination that disclosure to defendant was not required. Although the documents pertained to an ongoing Schenectady Police Department internal affairs investigation in which defendant is involved, they contain no exculpatory material relative to the present matter, the officers named in the investigation did not testify at trial, and the documents would not have changed the result of the proceeding (see People v Fuentes, 12 NY3d 259, 263-264 [2009]).
We next turn to defendant‘s contention that Supreme Court abused its discretion in admitting into evidence a recording of Clifford‘s initial 911 radio call to the police dispatcher. Supreme Court found, after listening to the recording, that it was an excited utterance, as well as the present sense impression of the officer. The court further found that it did not constitute bolstering and admitted the recording into evidence based on these exceptions to the hearsay rule. “[A] 911 tape is hearsay, as an out-of-court statement admitted for the truth of the matter asserted” (People v Buie, 86 NY2d 501, 505 [1995]). Assuming, without deciding, that Supreme Court erred in admitting
We also find no abuse of discretion in Supreme Court‘s refusal to give defendant‘s requested missing witness charge. Such a charge would have allowed the jury to draw an unfavorable inference toward the People based on the People‘s failure to call the victim as a witness (see People v Savinon, 100 NY2d 192, 196 [2003]). “To warrant a missing witness charge, the proponent of the charge must establish that (1) the witness‘s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the control of the party against whom the charge is sought, so that the witness would be expected to testify in that party‘s favor; and (4) the witness is available to that party” (People v Brown, 139 AD3d 1178, 1179 [2016] [internal quotation marks and citations omitted]). Clifford detailed the efforts utilized to contact the victim, including requesting the Schenectady Police Department patrol units to look for him, checking known addresses and contacting confidential informants, the Schenectady County Sheriff‘s Department, the State Police and the New York City Police Department. Clifford testified that, despite the fact that there were outstanding warrants for the victim in Schenectady County and in New York City, he had been unable to locate the victim. Supreme Court found that, based on Clifford‘s testimony, the victim was unavailable to the People and not under the People‘s control. Given the existence of the outstanding warrants for the victim, and the diligent efforts portrayed by Clifford to locate him (see People v Gunn, 144 AD3d 1193, 1195 [2016], lv denied 28 NY3d 1145 [2017]), the refusal to give the missing witness charge was not an abuse of discretion and will not be disturbed.
Lastly, we reject defendant‘s contention that his sentence was harsh and excessive. Specifically, defendant contends that, in light of its remarks at the time of sentencing, Supreme Court improperly considered the injury to the victim‘s leg in imposing sentence, and it overlooked the fact that defendant was acquitted of the charge of assault in the first degree as alleged in count 3 of the indictment involving that injury to the victim. However, our review of the sentencing minutes reveals no sug-
Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.
Ordered that the judgment is affirmed.