Skip Laisure, New York, NY (John B. Latella and Kendra L.
Hutchinson of counsel), for appellant.
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove, Solomon Neubort, and John C. Carroll of counsel),
E. CHAMBERS, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE,
BETSY BARROS, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Gary, J.), rendered September 13, 2013, convicting
him of attempted murder in the second degree and assault in
the first degree, upon a jury verdict, and imposing sentence.
that the judgment is reversed, as a matter of discretion in
the interest of justice, and a new trial is ordered.
victim, Christian Rivera, his friend, Jose Torres, and
Torres' girlfriend, Alexandra Schwoerer, were walking
along Lorimer Street in Williamsburg, Brooklyn, on the
evening of December 5, 2011, when Rivera was beckoned by a
stranger who was standing on the top row of nearby bleachers,
with approximately five to eight other men in the vicinity.
The stranger displayed a hand gesture used by members of the
Latin Kings gang and asked Rivera if he "was king."
While Rivera saw the stranger's face, he did not get
"a clear look" at it. However, he described the
stranger as a Hispanic man wearing a black waist-length
jacket, and provided other details regarding the
individual's height and clothing that were consistent
with the defendant's appearance on the date of the
Rivera, himself a former member of the Latin Kings, responded
by going up to the man with the waist-length jacket to shake
his hand, the man punched Rivera in the face three times.
Another man wearing a black hooded sweater and a fitted black
wool Yankees cap then approached Rivera from behind, and
together the two men slammed Rivera to the ground. Rivera
called out to Torres for help, and Torres began fighting with
the man with the waist-length jacket. Torres was soon
overpowered, however, when one or more others joined in the
fight against him. The man with the waist-length jacket then
returned to Rivera, holding him down by the shoulders while
the man with the hooded sweater stabbed Rivera repeatedly.
trial, neither Rivera nor Schwoerer identified the defendant
in court. Schwoerer, who was standing approximately 20 feet
from where the incident occurred, explained that she could
not get a clear view of the face of the individual who was
holding Rivera down. However, she described the perpetrator
as a Hispanic man wearing a black waist-length jacket, and
provided a general description of the perpetrator's
height and age that was consistent with the description given
by Rivera, as well as the defendant's appearance on the
date of the incident. Schwoerer also testified that, after
the fight, the man who had been holding Rivera down picked up
a red New Jersey Devils hat, which belonged to Torres, and
ran away with it. Schwoerer knew that the hat belonged to
Torres because no one else was wearing a red New Jersey
Devils hat that day. Moreover, the hat was distinctive in
that it was brand new and still had its original sticker on
it, Rivera having bought it just two days earlier as a gift
minutes of the attack, the police stopped the defendant
approximately five blocks away. He was wearing a black
waist-length jacket and a red New Jersey Devils hat with a
sticker on it.
defendant himself, through the testimony of two of his
friends, offered direct evidence not only placing him at the
scene of the crime, but also participating in a fistfight
with a man wearing a red hat. In addition, the
defendant's grand jury testimony, which was read to the
jury as part of the People's case, also placed him at the
scene of the crime. Among other things, the defendant
testified before the grand jury that he was attacked from
behind by a man wearing a red hat, and that, after the fight,
he mistakenly picked up the red hat instead of his own. The
defendant and his two friends denied that the defendant
participated in the attack on Rivera.
the jury trial, the defendant was convicted of attempted
murder in the second degree and assault in the first degree.
defendant's challenge to the legal sufficiency of the
evidence supporting his convictions is unpreserved for
appellate review (see CPL 470.05; People v
Hawkins, 11 N.Y.3d 484, 492). In any event, viewing the
evidence in the light most favorable to the prosecution
(see People v Contes, 60 N.Y.2d 620, 621), we find
that it was legally sufficient to establish the
defendant's guilt beyond a reasonable doubt.
upon the exercise of our factual review power (see
CPL 470.15), we are satisfied that the verdict of guilt
was not against the weight of the evidence. While an
acquittal would not have been unreasonable in this largely
circumstantial case, particularly in light of evidence that
more than one individual participated in the fight against
Torres, upon weighing the conflicting testimony, reviewing
the rational inferences that may be drawn from the evidence,
and evaluating the strength of such conclusions, the weight
of the credible evidence supports the jury's finding of
guilt beyond a reasonable doubt (see People v
Danielson, 9 N.Y.3d 342, 348), and there is no basis to
overturn the credibility determination of the jury, which had
the opportunity to view the witnesses, hear the testimony,
and observe demeanor (see People v Bleakley, 69
N.Y.2d 490, 495; People v Fisher, 116 A.D.3d 968,
because the defendant was deprived of his constitutional
right to confront the witnesses against him, the judgment of