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People v. Kahson B.

Supreme Court of New York, First Department

February 16, 2017

The People of the State of New York, Respondent,
Kahson B., Defendant-Appellant.

          Richard M. Greenberg, Office of the Appellate Defender, New York (Thomas M. Nosewicz of counsel), for appellant.

          Darcel D. Clark, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.

          Friedman, J.P., Sweeny, Saxe, Kapnick, Gesmer, JJ.

         Judgment, 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' probation, affirmed.

         The verdict was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 [2007]). 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.

         In the 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.

         Those 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.

         Any 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 [1979]), which was not established here.

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

          GESMER, J. (dissenting)

         I respectfully dissent.

         The 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 [2011]).


         On 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.

         At the 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 [1]. Although the night was dark, the complainant testified that the area was lit by store signs.

         As he 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.

         The 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.

         As the 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.

         The 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 attacked him.

         Police 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 ...

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