People v. Howell

Patricia Pazner, New York, NY (Kathleen Whooley of counsel; Marissa Cohen and Ned Schefer on the brief), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Marie John-Drigo of counsel), for respondent.

LARA J. GENOVESI, J.P. VALERIE BRATHWAITE NELSON DEBORAH A. DOWLING HELEN VOUTSINAS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruth Shillingford, J.), rendered July 22, 2019, convicting him of strangulation in the second degree, criminal possession of stolen property in the fourth degree, and false personation, upon a jury verdict, and imposing sentence. By decision and order dated December 28, 2022, this Court remitted the matter to the Supreme Court, Kings County, for a new hearing and determination of that branch of the defendant's omnibus motion which was to suppress physical evidence, and thereafter a report to this Court advising it of the new determination, and held the appeal in abeyance in the interim (see People v Howell, 211 A.D.3d 1038). The Supreme Court, Kings County (Jane C. Tully, J.), has now filed its report.

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of stolen property in the fourth degree and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

In 2019, the defendant was convicted of strangulation in the second degree as to a first complainant and criminal possession of stolen property in the fourth degree, based on the recovery of property belonging to a second complainant, which was found in a jacket upon the defendant's arrest for strangulation. The defendant was also convicted of false personation in relation to statements that he made at the police precinct station house following his arrest. Prior to trial, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress physical evidence, determining that the police had probable cause for his arrest and that the search of the jacket was incident to his lawful arrest. In a prior decision and order, this Court held the defendant's appeal in abeyance and remitted the matter to the Supreme Court for a new hearing and determination of that branch of the defendant's omnibus motion which was to suppress physical evidence, and thereafter a report to this Court advising it of the new determination (see People v Howell, 211 A.D.3d 1038). After conducting a new suppression hearing, the Supreme Court filed a report, upon consideration and review of all arguments raised by the parties at the hearing, which did not disturb its determination concerning probable cause for the arrest, but which determined, inter alia, that the People failed to meet their burden of demonstrating that the search of the jacket was justified as a search incident to the defendant's arrest.

Since the Supreme Court decided the issue of the legality of the search of the jacket in the defendant's favor on remittitur, this Court is precluded from reviewing that issue on the defendant's appeal (see CPL 470.15[1]; People v Ingram, 18 N.Y.3d 948, 949; People v Concepcion, 17 N.Y.3d 192, 196; People v LaFontaine, 92 N.Y.2d 470, 474; People v Chazbani, 153 A.D.3d 930, 932). Accordingly, the defendant's conviction of criminal possession of stolen property in the fourth degree, premised upon recovery of the stolen property from the jacket, must be vacated (see People v Tates, 189 A.D.3d 1088, 1088; People v Chazbani, 153 A.D.3d at 931; People v Thompson, 118 A.D.3d 922, 922).

"'Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis'" (People v Thomas, 146 A.D.3d 991, 993, quoting People v Baghai-Kermani, 84 N.Y.2d 525, 532). Here, contrary to the defendant's contention, there is no reasonable possibility that the jury's decision to convict on the count of criminal possession of stolen property in the fourth degree influenced its verdict of guilty on the remaining counts in a meaningful way, as the evidence in support of the defendant's convictions for strangulation in the second degree and false personation was strong and was not "'factually related' in any meaningful way" to the items recovered from the defendant's jacket (People v Baghai-Kermani, 84 N.Y.2d at 533).

The Supreme Court properly determined that the police had probable cause to arrest the defendant for the strangulation of the first complainant based on the "fellow officer rule" (People v Ketcham, 93 N.Y.2d 416, 419; see People v Henderson, 83 A.D.3d 864; People v Green, 13 A.D.3d 646). The arresting officer lawfully arrested the defendant as she was acting upon the direction of an officer in possession of information sufficient to constitute probable cause for the arrest (see People v Ketcham, 93 N.Y.2d at 419).

The defendant's challenge to the legal sufficiency of the evidence supporting his convictions of strangulation in the second degree and false personation is only partially preserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 N.Y.3d 484). 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 of strangulation in the second degree and false personation beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 494). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those counts was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).

Accordingly, we modify the judgment by vacating the conviction of criminal possession of stolen property in the fourth degree and the sentence imposed thereon and remit the matter to the Supreme Court, Kings County, for the entry of an order granting that branch of the defendant's omnibus motion which was to suppress the physical evidence recovered from the jacket (see People v Chazbani, 153 A.D.3d at 932).

GENOVESI, J.P., BRATHWAITE NELSON, DOWLING and VOUTSINAS, JJ., concur.