Richard M. Greenberg, Office of the Appellate Defender, New
York (Thomas M. Nosewicz of counsel), for appellant.
D. Clark, District Attorney, Bronx (Eric C. Washer of
counsel), for respondent.
Friedman, J.P., Sweeny, Saxe, Kapnick, Gesmer, JJ.
Supreme Court, Bronx County (Analisa Torres, J.), rendered
December 21, 2009, convicting defendant, after a jury trial,
of assault in the second degree, adjudicating him a youthful
offender, and sentencing him to a term of five years'
verdict was not against the weight of the evidence (see
People v Danielson, 9 N.Y.3d 342, 348-349 ). The
complainant identified defendant in photo and lineup
identification procedures that were properly conducted. We
reject the dissent's contention that we should find,
contrary to the jury's finding, that the complainant was
unable to correctly identify defendant. We disagree with any
suggestion that, based on the complainant's condition due
to the assault he suffered, causing some loss of
consciousness, his identification is not credible. There is
nothing the dissenting justice points to in the record that
would indicate that the complainant lost consciousness at the
time he first saw his attacker.
cases cited by the dissent in which complainants'
identifications were rejected and convictions reversed as a
result, the reasons for completely discounting the
identifications were far more compelling. In People v
Bailey (102 A.D.3d 701');">102 A.D.3d 701 [2d Dept 2013]) the complainant
was admittedly intoxicated, was unable to remember prominent
features of the defendant's face, acknowledged that he
had been looking mostly at a gun and had not had a good
opportunity to look at the shooter, and, in addition, the
identification took place more than two months after the
crime. In People v Russell (99 A.D.3d 211');">99 A.D.3d 211 [1st Dept
2012]), there were numerous significant, and worrisome,
discrepancies between the complainant's narrative and
what was seen on the surveillance video, and a strong alibi
defense along with a reasonable alternative explanation for
why the complainant had recognized the defendant.
grounds for undercutting one-witness identifications are not
comparable to the dizziness and loss of consciousness caused
by the subject assault, and the limited nature of the
complainant's two opportunities to look directly at his
attacker. Our system of criminal justice relies on victims of
violence identifying their attackers when they are able to do
so. It would be ironic indeed if the severity of an attack
and the resulting injuries were to prompt courts to treat the
subsequent identification as unworthy of belief, despite the
complainant's certainty. Of course, the defense is
entitled to question an identification based on the
complainant's compromised condition caused by the attack.
However, that argument did not sway the jury here, and upon
our review of the evidence at trial, it does not appear that
the complainant was unable to make an identification.
inconsistencies in the complainant's testimony were
minor, possibly due to limitations in his English skills, and
did not undermine his overall credibility. Nor are grounds to
upset the verdict presented by jurors' post-verdict
assertions of escalating tempers, shouting, and bad conduct
by jurors during deliberations (see People v Redd,
164 A.D.2d 34');">164 A.D.2d 34 [1st Dept 1990]). In addition, the verdict may
not be revisited based on jurors' change of heart after
the verdict was announced, when defendant cried and denied
committing the crime, or based on jurors' belated
realization that the crime of which they convicted defendant
was a felony rather than a misdemeanor. A jury verdict may
only be impeached upon a showing of improper influence
(see People v Brown, 48 N.Y.2d 388');">48 N.Y.2d 388 ), which
was not established here.
concur except Gesmer, J. who dissents in a memorandum as
GESMER, J. (dissenting)
complainant in this case was clearly the victim of a heinous,
unprovoked attack. However, the trial evidence raises a
reasonable doubt as to whether he reliably identified
defendant as one of his attackers. Accordingly, this is one
of the rare cases in which, upon exercising our unique
authority to act as a second jury empowered to assess the
proof independently, we should determine that the People did
not prove defendant's identity beyond a reasonable doubt,
and acquit him (see People v Delamota, 18 N.Y.3d
107, 116-117 ).
August 21, 2007 at around 10:00 p.m., the complainant was
attacked by a group of people near East 167th Street and
Sheridan Avenue, close to his home in the Bronx.
time of the incident, the complainant was wearing two
necklaces, two gold rings, a gold watch, and a gold bracelet.
He was carrying a wallet that he testified contained cash he
had obtained earlier, including $450 to pay bills, in the one
pocket, and $50 in a zipper compartment . Although the night
was dark, the complainant testified that the area was lit by
was walking, he saw a male teenager leaning against a car and
speaking to a woman, and two men speaking to each other, one
of whom was looking directly at him. The complainant
described the man looking at him as six feet, one inch tall,
with "corn rows, with the lump on the ear" and
about 24 or 25 years old. He had seen him around the
neighborhood about "ten to 15 times before." The
complainant described the teenager leaning against the car as
"slim, dark skinned with an afro, " about
"five six, seven, " and "16, 17 or 18"
years old. The complainant said he had seen the teenager in
the neighborhood about four or five times. The complainant
would later identify the teenager leaning against the car as
defendant, and the man looking at him as the codefendant.
However, the complainant testified that he had never seen the
teenager and the man together before.
complainant testified that, as he walked past the teenager,
he heard him ask, "What the fuck you looking at
[sic]?" The complainant turned around and the teenager
asked him again, "[W]hat the fuck you looking at?"
After this, the codefendant approached the complainant, told
him the teenager who had spoken to him was his "little
brother, " and asked him, "What the fuck are you
looking at him for?" The codefendant then punched the
complainant in the face. The complainant felt dizzy from the
punch and leaned on the hood of a nearby car for support.
After this, the complainant was punched from behind his back
by a man whom the complainant later claimed was defendant.
Although he was punched from behind, the complainant claims
to have turned around at some point to look at his attacker.
The punches caused the complainant to bleed heavily.
assault continued, the codefendant grabbed at the
complainant's necklaces, causing one to fall to the
ground. The complainant reached for it, but the codefendant
stepped on it. The complainant attempted to place it in his
back pocket but claimed to feel that someone, although he
could not say who, reached in and took it. The complainant
also claims that his wallet was taken out of his back pocket
by someone he could not identify. He testified at trial and
in the grand jury that his bracelet and watch were taken.
complainant testified that others joined in the attack. He
claimed that one of three triplets who lived in the
neighborhood punched him, although he could not recall which
triplet it was. He also testified that another man asked him
what was wrong, and, when the complainant asked him for help,
he too punched the complainant. The complainant could feel
his many attackers kicking his body. He later said he had
been in "[e]xtreme pain, " and described the attack
as the "worst thing [he] ever experienced." At
trial, he testified that, in all, about six or seven people
Officers Heilig and Zerella came upon the complainant while
on patrol. Officer Heilig testified that the complainant was
bleeding from his face and mouth, and appeared to be
"uneasy on his feet, " and "confused and
frustrated." When Officer Heilig asked what happened,
the complainant responded, "Help me help me, " but
provided no further details about the incident. Officer
Heilig testified that he had trouble communicating with the
complainant, which he attributed to the blood in the