Second, Eleventh and Thirteenth JudicIal DistrictsCases released on: October 3, 2018
By: Weston, J.P., Aliotta, Elliot, JJ.Appellate Advocates (Erin Tomlinson of counsel), for appellant.Queens County District Attorney (John M. Castellano, Johnnette Traill, William H. Branigan and Anish M. Patel of counsel), for respondent.2014-2945 Q CR. PEOPLE v. GURLEY, DOUGLAS — Appeal from judgments of the Criminal Court of the City of New York, Queens County (Elisa S. Koenderman, J.), rendered November 25, 2014. The judgments convicted defendant, upon his pleas of guilty, of criminal contempt in the second degree and resisting arrest, respectively, and imposed sentences. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgments of conviction are affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.September 28, 2018Koch Law (Lee Koch of counsel), for appellant.Kings County District Attorney, (Leonard Joblove, Ruth E. Ross and Daniel Berman of counsel), for respondent.2015-1542 K CR. PEOPLE v. NOEL, TIMOTHY — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Curtis J. Farber, J.), rendered May 5, 2015. The judgment convicted defendant, after a nonjury trial, of nine counts of sexual abuse in the third degree, and one count each of menacing in the third degree, harassment in the second degree, public lewdness, and exposure of a person, and imposed sentence.ORDERED that the judgment of conviction is affirmed. After a nonjury trial, defendant was convicted of nine counts of sexual abuse in the third degree (Penal Law §130.55), and one count each of menacing in the third degree (Penal Law §120.15), harassment in the second degree (Penal Law §240.26 [2]), public lewdness (Penal Law §245.00 [a]), and exposure of a person (Penal Law §245.01). At the trial, the victim testified that she had been employed as a job training participant (JTP) with the New York City Parks Department and that defendant had been her supervisor. She testified, in detail, that defendant had committed numerous acts of sexual abuse and other offenses between March 25 and May 19, 2013. She testified as to the various lewd remarks defendant had made to her, including, when she had first gotten the job as a JTP, that defendant, while looking at her crotch and licking his lips, had exclaimed, “them legs, them legs.” She recalled that defendant had stated that he would “get” every female who worked at least two weeks under his supervision. She testified that, on her day off, defendant had asked her to come to the office and, after making sexual comments, had exposed his penis to her. She also testified in detail with respect to an incident that had occurred in a Parks Department vehicle at a red light on Eastern Parkway, in which defendant had exposed his penis and told her to touch it.In exercising the court’s factual review power (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348 [2007]), we must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. This court must first determine whether an acquittal would not have been unreasonable based upon the evidence presented and, second, whether the trier of fact failed to accord the evidence the weight it should have been accorded (see Danielson, 9 NY3d at 348). Here, an acquittal would have been unreasonable based on the victim’s extremely detailed testimony. Thus, we find that the verdict of guilt was not against the weight of the evidence.Defendant’s contention that the court should have provided itself with a missing witness charge is unpreserved for appellate review (see People v. Watson, 245 AD2d 87, 88 [1997]; People v. Klass, 47 Misc 3d 156[A], 2015 NY Slip Op 50899[U] [App Term, 1st Dept 2015]). In any event, defendant’s claim is without merit. The prosecutor is not required to present the testimony of all eyewitnesses. Here, the testimony of the uncalled witnesses would merely have been cumulative (see People v. Keen, 94 NY2d 533, 539 [2000]; People v. Gonzalez, 68 NY2d 424, 427-428 [1986]). Furthermore, with respect to one JTP of whose identity defendant was aware, defendant chose not to call her as a witness (see People v. Buckler, 39 NY2d 895, 897 [1976]). We note that the uncalled witnesses were all either JTPs or Parks Department employees, and were equally available to both parties (see People v. Gonzalez, 68 NY2d at 429; People v. Bae, 137 AD3d 804 [2016]).Accordingly, the judgment of conviction is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.September 28, 2018Appellate Advocates (Laura B. Tatelman of counsel), for appellant.Kings County District Attorney (Leonard Joblove and Diane R. Eisner of counsel), for respondent.2015-1678 K CR. PEOPLE v. NURSE, ANTOINE — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Laura R. Johnson, J.), rendered June 19, 2015. The judgment convicted defendant, upon his plea of guilty, of petit larceny, and imposed sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.September 28, 2018New York City Legal Aid Society (Joanne Legano Ross of counsel), for appellant.Kings County District Attorney, (Leonard Joblove and Keith Dolan of counsel), for respondent.2015-1805 K CR. PEOPLE v. WAGNER, EDDIE — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered July 9, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal mischief in the fourth degree, and imposed sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.September 28, 2018Appellate Advocates (Dina Zloczower of counsel), for appellant.Kings County District Attorney (Leonard Joblove and Camille O’Hara Gillespie of counsel), for respondent.2016-113 K CR. PEOPLE v. JORDAN, ANTHONY — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Andrew S. Borrok, J.), rendered December 9, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposed sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.September 28, 2018New York City Legal Aid Society (Elizabeth L. Isaacs of counsel), for appellant.Kings County District Attorney (Leonard Joblove, Ruth E. Ross and Daniel Berman of counsel), for respondent.2016-1181 K CR. PEOPLE v. JOHNSON, DJANI — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Curtis J. Farber, J.), rendered April 18, 2016. The judgment convicted defendant, after a nonjury trial, of driving while ability impaired, and imposed sentence.ORDERED that the judgment of conviction is affirmed.Following a nonjury trial, defendant was convicted of driving while ability impaired (Vehicle and Traffic Law §1192 [1]). On appeal, defendant contends that the conviction was against the weight of the evidence.In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v. Danielson, 9 NY3d 342, 348-349 [2007]), we nevertheless accord great deference to the factfinder’s opportunity to view the witnesses, hear their testimony and assess their credibility (see People v. Lane, 7 NY3d 888, 890 [2006]; People v. Romero, 7 NY3d 633, 644 [2006]; People v. Mateo, 2 NY3d 383, 410 [2004]; People v. Bleakley, 69 NY2d 490, 495 [1987]). Here, the credible testimony amply supports defendant’s conviction of driving while ability impaired, which required nothing more than a showing that defendant’s ability to operate a motor vehicle as a reasonable and prudent driver was impaired to any extent by the voluntary consumption of alcohol (see People v. Litto, 8 NY3d 692, 706 [2007]; People v. Cruz, 48 NY2d 419, 427 [1979]; People v. McNamara, 269 AD2d 544, 545 [2000]). The testimony established that defendant had fallen asleep behind the wheel after he had stopped his vehicle at a red light, thereby obstructing traffic. Two officers, who had been traveling in a marked police vehicle that had stopped behind defendant’s vehicle at the red light, detected an odor of alcohol on defendant’s breath upon approaching him and observed that defendant struggled to maintain his balance while being questioned at the scene. One of the officers also observed that defendant had watery, bloodshot eyes, that he was slow in responding to her orders and that his speech was incoherent. Both officers opined that defendant’s ability to operate his vehicle had been impaired. Furthermore, defendant admitted that he had “had a few beers,” refused to submit to a breath test and ultimately consented to undergo an eye test, the result of which indicated that defendant was under the influence of an alcoholic beverage. The officer who administered the eye test also observed defendant’s watery, bloodshot eyes and detected the odor of alcohol on defendant’s breath.In view of the foregoing, we are satisfied that the verdict was not against the weight of the evidence (see People v. Taylor, 104 AD3d 603, 604 [2013]; People v. Lizzio, 178 AD2d 741, 742 [1991]; People v. Monk, 177 AD2d 602, 603 [1991]; People v. Lloyd, 49 Misc 3d 135[A], 2015 NY Slip Op 51475[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v. Sykes, 31 Misc 3d 126[A], 2011 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; compare People v. Belakh, 21 Misc 3d 136[A], 2008 NY Slip Op 52215[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).Accordingly, the judgment of conviction is affirmed.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.September 28, 2018
