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People v. Ochoa

December 18, 2008


Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered January 20, 2006, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 10 years (plus five years of post-release supervision), affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Nardelli, Williams, Freedman, JJ.

1063/03 2297/03

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant failed to preserve the sufficiency issue, and we decline to review it in the interest of justice. Alternatively, we find that when viewed in the light most favorable to the People, the evidence permitted a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury" (People v Bleakley, 69 NY2d 490, 495 [1987]; see also Danielson, 9 NY3d at 349). Robbery in the second degree, on the theory that defendant forcibly stole property with the aid of another person actually present, was supported by unrefuted testimony that the co-defendant inexplicably apologized to complainant Ruballo shortly before the crime, raising the inference that he knew what was about to happen; that complainant Cruz observed defendant and his co-defendant talking quietly immediately before the co-defendant began wresting the property from Cruz and defendant's restraint of Ruballo as soon as she responded to the clamor; that Cruz was certain that defendant, the only other person present at the time, facilitated the robbery by pulling Cruz's jacket over his head from behind as he and the co-defendant struggled; and that both assailants fled together after the co-defendant beat and kicked Cruz to gain control of the property and wounded Cruz with a box cutter or razor dispenser provided by defendant.

Similarly, the weight of the credible evidence supported the verdict, (see Danielson, 9 NY3d 342, 348 [2007]), since acquittal would not have been unreasonable here, we must weigh the conflicting testimony, review any rational inferences that may be drawn from the evidence, evaluate the strength of such conclusions, and based upon the weight of the credible evidence, decide whether the jury was justified in finding the defendant guilty beyond a reasonable doubt. The principal evidentiary issues raised by defendant on appeal are the inconsistencies in Cruz's and Ruballo's various pretrial accounts of the robbery and the purportedly weak, conflicting evidence that defendant played any role in the robbery. In their trial testimony, both witnesses explained the inconsistencies as an attempt to conceal the fact that the site of the robbery (Ruballo's apartment) was essentially a "crack house" and admitted their drug histories; Cruz also professed to being "confused" by the questions. We, like the jury, find this explanation, as well as the testimony cited above, credible, and also find that the evidence leads to the rational and plausible conclusion, beyond a reasonable doubt, that defendant acted with the co-defendant in committing the crime.

We find lacking in merit the assertion that the prosecutor improperly used Cruz's and Ruballo's prior consistent statements to buttress their testimony, and in any event, that any error was harmless under the circumstances. As noted, Cruz and Ruballo admitted in the course of their trial testimony its inconsistency with their pretrial accounts of the robbery, and explained their earlier fabrications, which essentially altered the time of day and the location within the building where the robbery occurred.

However, those fabrications were collateral to the core allegations of their testimony supporting the robbery charge - namely, that inside the building at the address and on the date specified, the co-defendant forcibly stole Cruz's video game console by beating and cutting him, aided by defendant who was actually present - from which they never deviated. The cross- examinations of Cruz and Ruballo refuted the fabrications, but never refuted the core allegations. Moreover, the tenor of the prosecutor's redirect was not necessarily the rehabilitation of the two witnesses or the bolstering of their testimony. These efforts were directed at leaving the jury with the unrefuted core allegations supporting the charges by readily conceding Cruz's and Ruballo's liabilities and fabrications, and offering a plausible explanation for the latter. Specifically, on redirect, the prosecutor did not attempt to correct Cruz's false allegations to the grand jury, but sought to show that there were matters he was not "confused" about, which were consistent with his direct testimony. As to Ruballo, the prosecutor did not use her prior statement to the police to establish that she told the complete truth on direct about the circumstances surrounding the crime; rather, she asked Ruballo to reiterate the portions of her statement that were true and untrue (hardly different from defense counsel's cross-examination of Ruballo). The portion she confirmed as true was the basic information provided in the statement and on direct - e.g., her name, the defendants' names, the address of the building, and the location in the building where the incident occurred.

The trial court correctly found, after conducting a CPL 330.30 hearing, that defendant's contention that he was deprived of his right to be present at a material stage of the proceedings lacked merit, in addition to being waived as unpreserved. The jury foreperson's note was properly found to address a ministerial matter - the procedure to be followed in announcing the verdict - rather than a substantive one (People v Collins, 99 NY2d 14, 17-19 [2002]; People v Bonaparte, 78 NY2d 26, 30-31 [1991]), and defense counsel's failure to make the requisite objection or otherwise seek relief from the court's ruling in a timely manner waived such claim (see People v Campbell, 48 AD3d 204, 205 [2008], lv denied 10 NY3d 860 [2008]).

Defendant's pro se contention that he was afforded ineffective assistance of counsel cannot be adequately reviewed upon the record submitted. By failing to seek CPL 440.10(1)(a) relief, he failed to present a record of counsel's explanation for his trial tactics (see People v Holman, 14 AD3d 443 [2005], lv denied 4 NY3d 887 [2005]). To the extent we can review this claim based upon the record submitted, we find that counsel did provide meaningful representation at trial, as evidenced by defendant's acquittal of the most serious charges submitted to the jury, as well as the effective cross-examination of the complainants.

We have reviewed the balance of defendant's argument and find it without merit.

All concur except Freedman, J. who dissents in a memorandum as follows:

FREEDMAN, J. (dissenting)

I respectfully dissent, because I believe the trial court committed reversible error by allowing the prosecutor to bolster the testimony of Ruballo and Cruz, the two main witnesses against ...

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