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People v. Tavarez

Supreme Court of New York, Second Department

November 8, 2017

The People of the State of New York, respondent,
v.
Erick Tavarez, appellant.

          Paul Skip Laisure, New York, NY (John B. Latella and Kendra L. Hutchinson of counsel), for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and John C. Carroll of counsel), for respondent.

          CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JOSEPH J. MALTESE, BETSY BARROS, JJ.

          DECISION & ORDER

         Appeal 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.

         ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

         The 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 incident.

         When 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.

         At the 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 for Torres.

         Within 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.

         The 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.

         After the jury trial, the defendant was convicted of attempted murder in the second degree and assault in the first degree.

         The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is unpreserved for appellate review (see CPL 470.05[2]; 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.

         Moreover, upon the exercise of our factual review power (see CPL 470.15[5]), 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, 969).

         Nevertheless, because the defendant was deprived of his constitutional right to confront the witnesses against him, the judgment of ...


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