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The People &C v. Sebastian Delamota

November 17, 2011

THE PEOPLE &C., RESPONDENT,
v.
SEBASTIAN DELAMOTA, APPELLANT.



The opinion of the court was delivered by: Graffeo, J.:

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

Over a century ago, People v Ledwon (153 NY 10 [1897]) established that a criminal conviction is not supported by legally sufficient evidence if the only evidence of guilt is supplied by a witness who offers inherently contradictory testimony about the defendant's culpability. The victim in this case consistently told the jury that defendant was the person who robbed him but his testimony conflicted with the testimony of other witnesses. We hold that the limited rule of Ledwon does not govern on these facts and the proof at trial was sufficient to support defendant's conviction despite the evidentiary discrepancies. Nevertheless, an unduly suggestive pretrial identification procedure entitles defendant to a new trial preceded by an independent source hearing.

I

On an evening in October 2006, Juan Hernandez was robbed at knife point in an elevator at his apartment building. Shortly after the incident, his son, Juan Jr., telephoned 911 and pretended to be his father. Juan Jr. gave the 911 operator a general description of the robber but some of his statements were not accurate because he had received little information from his father.

As a result of the 911 call, later that night Detective Bruce Koch spoke to Hernandez and his son. Juan Jr. translated for his father during the conversation. According to Detective Koch, Hernandez described the robber as a Hispanic man in his mid-20s who weighed approximately 140 pounds and was about the detective's height -- 5'6". Hernandez also allegedly stated that the perpetrator held the knife in his right hand and took the stolen items with his left hand. The detective assembled various photographs of individuals from a police department database that matched this general description but Hernandez was not able to make an identification. Defendant Sebastian Delamota -- who at the time of the robbery was 18 years old, 6'3" and had a functionally impaired left arm as a result of a previous gunshot injury -- was not among the persons in the photographs shown to Hernandez.

Hernandez and his son met again with Detective Koch a few days after the robbery. Juan Jr. told the detective that, based on neighborhood gossip, he had been told that the perpetrator of his father's robbery was "Sebastian" and that this individual had been shot earlier that year on Elmhurst Avenue. Detective Koch asked Juan Jr. if he knew Sebastian and he responded in the negative. After searching the police database, Detective Koch learned that defendant had been shot on Elmhurst Avenue in April 2006. The detective located defendant's photo, assembled an array and showed it to Hernandez. With Juan Jr. translating, Hernandez chose defendant's photograph as depicting the man who robbed him. Defendant was subsequently apprehended, placed in a lineup and identified by Hernandez, this time with a Spanish-speaking detective serving as the interpreter.

Defendant was indicted for first-degree robbery, second- and third-degree weapon possession and second-degree menacing. Defense counsel moved to suppress the identifications by Hernandez, arguing that Juan Jr.'s presence during the photo array caused the procedure to be unduly suggestive since there was a possibility that Juan Jr. knew defendant from the neighborhood before the array was conducted. The People responded that the identification could not have been suggestive because Juan Jr. told Detective Koch that he did not know defendant. Supreme Court determined that although it was "not the best practice" to use Juan Jr. as an interpreter for his father, there was no basis for suppression because the son "did not know Mr. Delamota from the neighborhood, did not know who Mr. Delamota was" during the photo array and, hence, the lineup was similarly untainted.

At the jury trial, Detective Koch testified about his recollection of Hernandez's description of the robber, including Hernandez's statement that the perpetrator held a knife in his right hand and used his left hand to take certain articles of property. When Hernandez testified, he recalled that the robber had been unable to raise his left arm above his waist. Hernandez claimed that Detective Koch's recollection was mistaken and denied that he ever told the police that the robber had used both arms during the commission of the crime. Hernandez also provided various explanations for other inconsistencies in the proof, such as the perpetrator's height and age and how much cash was stolen. In addition, the parties stipulated that Hernandez told a therapist the day after the robbery that he was mugged "by a man he recognized as visiting his apartment complex on various occasions," which statement conflicted with Detective Koch's testimony that Hernandez said he was not familiar with the attacker.

When Juan Jr. took the stand, he admitted that he had known defendant "for a long time" prior to the robbery and had been present when defendant was placed into an ambulance after being shot in April 2006. After this revelation, defense counsel moved to reopen the Wade hearing. Eventually, Supreme Court denied defendant's motion, concluding that the suppression court would have reached the same result even if it had been aware that Juan Jr. -- who acted as his father's translator during the photo array procedure -- had a pre-existing familiarity with defendant.

At the conclusion of the People's case and again at the close of all proof, defense counsel requested dismissal of the charges on the basis of insufficient evidence allegedly stemming from numerous discrepancies in the testimony of the witnesses. Supreme Court denied the motions and the jury found defendant guilty of first-degree robbery, third-degree weapon possession and second-degree menacing. Defendant was sentenced to 10 years in prison and 5 years of postrelease supervision.

The Appellate Division affirmed (74 AD3d 1225 [2d Dept 2010]), holding that Supreme Court did not improvidently exercise its discretion when it denied defendant's motion to reopen the suppression hearing. The court further determined that the evidence was legally sufficient to establish defendant's identity as the perpetrator of the robbery, the conviction was not against the weight of the evidence, Hernandez's testimony was not incredible as a matter of law and defendant's remaining contentions were meritless or unpreserved. A Judge of this Court granted defendant leave to appeal (15 NY3d 920 [2010]) and we now reverse.

II

Defendant contends that the People's proof was legally insufficient to establish his guilt beyond a reasonable doubt. Relying on People v Ledwon (153 NY 10 [1897]) and its progeny, defendant asserts that there was no reasonable basis for the jury to convict him because there was contradictory testimony regarding the perpetrator's appearance. The People argue that Ledwon does not control here because the victim consistently testified at trial that defendant was the robber and any discrepancies with pretrial statements fell within the province of the jury to make credibility determinations that are unreviewable in the context of a sufficiency challenge.

A verdict is legally sufficient if there is any valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt (see e.g. People v Smith, 6 NY3d 827, 828 [2006], cert denied 548 US 905 [2006], quoting People v Bleakley, 69 NY2d 490, 495 [1987]; People v Santi, 3 NY3d 234, 246 [2004]). The proof must be viewed in the light most favorable to the prosecution and the People are entitled to all reasonable evidentiary inferences (see e.g. People v Conway, 6 NY3d 869, 872 [2006]; People v Ford, 66 NY2d 428, 437 [1985]). In turn, the reviewing court is required "to marshal competent facts . . . and determine whether, as a matter of law, a jury could logically conclude that the People sustained [their] burden of proof" (People v Danielson, 9 NY3d 342, 349 [2007]). Under this standard, a ...


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