Opinion
06-01-2016
The PEOPLE, etc., respondent, v. Hasan STOKES, appellant.
Lynn W.L. Fahey, New York, NY (White & Case LLP [Kenneth A. Caruso, Laura Grai, and Louis O'Neill ], of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barall of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (White & Case LLP [Kenneth A. Caruso, Laura Grai, and Louis O'Neill ], of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barall of counsel), for respondent.
L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and BETSY BARROS, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered May 14, 2014, convicting him of robbery in the second degree (two counts) and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by reducing the defendant's conviction of robbery in the second degree under count two of the indictment to robbery in the third degree, and by vacating the sentence imposed upon the defendant's conviction under count two of the indictment; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for sentencing on the conviction of robbery in the third degree.
The Supreme Court's determination that the facially race-neutral reasons given for the defendant's peremptory challenges to two particular jurors were pretextual is entitled to great deference on appeal and will not be disturbed where, as here, the determination is supported by the record (see People v. Scott, 70 A.D.3d 978, 980, 894 N.Y.S.2d 532 ; People v. Fortunato, 59 A.D.3d 735, 875 N.Y.S.2d 100 ; People v. Boston, 52 A.D.3d 728, 728–729, 858 N.Y.S.2d 910 ; People v. Quito, 43 A.D.3d 411, 412–413, 840 N.Y.S.2d 622 ). Accordingly, the court properly granted the People's reverse Batson application (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ) with respect to the two challenged prospective jurors (see People v. Bell, 126 A.D.3d 718, 720, 5 N.Y.S.3d 227 ; People v. Fogel, 73 A.D.3d 803, 804, 899 N.Y.S.2d 655 ; People v. Clarke, 64 A.D.3d 612, 883 N.Y.S.2d 96 ).
However, we agree with the defendant that the People failed to present legally sufficient evidence of physical injury to sustain his conviction of robbery in the second degree under count two of the indictment (see Penal Law § 160.10[2][a] ). “Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). “Although the question of whether physical injury has been established is generally for the jury to decide, ‘there is an objective level ... below which the question is one of law’ ” (People v. Young, 99 A.D.3d 739, 740, 951 N.Y.S.2d 735, quoting Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 ).
The subject incident occurred as the complainant, a doctor, was on her way to work at Brooklyn Hospital. The complainant testified that during the incident the defendant and another man shoved her and pulled her to the ground, then took her purse. After the incident, the complainant “collected [herself]” and then resumed walking to the hospital. The complainant testified that she sustained a laceration and a welt on the back of her head, scratches and bruises on her elbow, and other bruises. At the hospital, she was given painkillers, ice, and bandages. The complainant was not able to work for the rest of that day, but returned to work the next day. She testified that she was “sore for several days.” Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of her physical condition (see
Matter of Philip A., 49 N.Y.2d at 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 ; People v. Boney, 119 A.D.3d 701, 702, 989 N.Y.S.2d 137 ; People v. Young, 99 A.D.3d 739, 740, 951 N.Y.S.2d 735 ; People v. Taylor, 83 A.D.3d 1105, 1106, 921 N.Y.S.2d 553 ; People v. McCummings, 203 A.D.2d 656, 657, 610 N.Y.S.2d 634 ; People v. Goins, 129 A.D.2d 733, 734, 514 N.Y.S.2d 494 ). Accordingly, the defendant's conviction of robbery in the second degree under count two of the indictment must be reduced to the lesser-included offense of robbery in the third degree (see Penal Law §§ 160.10[2][a] ; 160.05; People v. Young, 99 A.D.3d at 740, 951 N.Y.S.2d 735 ), and the matter must be remitted to the Supreme Court, Kings County, for sentencing on the conviction of robbery in the third degree.
Contrary to the defendant's contentions, the sentences imposed for his convictions of robbery in the second degree under count one of the indictment (see Penal Law § 160.10[1] ) and criminal possession of stolen property in the fifth degree (see Penal Law § 165.40 ) were not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).