Opinion
2012-10785. Ind. No. 5222/10.
08-09-2017
The PEOPLE, etc., respondent, v. Emil VAZQUEZ, also known as "King Massive," appellant.
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered November 15, 2012, convicting him of arson in the first degree, criminal possession of a weapon in the first degree, and conspiracy in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the conviction of criminal possession of a weapon in the first degree to criminal possession of a weapon in the third degree, and vacating 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 in accordance herewith.
The defendant and various codefendants were charged with crimes in connection with a gang-related arson carried out with the use of two Molotov cocktails.
Although the defendant's legal sufficiency claim is unpreserved for appellate review, we reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c] ; People v. Rose, 134 A.D.3d 1135, 1136, 22 N.Y.S.3d 534 ). We agree with the defendant that the evidence was not legally sufficient to establish his guilt of criminal possession of a weapon in the first degree because it did not demonstrate that the Molotov cocktails constituted an "explosive substance" within the meaning of Penal Law § 265.04(1) (see People v. McCrawford, 47 A.D.2d 318, 320–321, 366 N.Y.S.2d 424 ; People v. Sullivan, 39 A.D.2d 631, 331 N.Y.S.2d 298 ; People v. Getman, 188 Misc.2d 809, 815, 729 N.Y.S.2d 858 [Chemung County Ct.] ; People v. Fernandez, 150 Misc.2d 560, 562–564, 569 N.Y.S.2d 569 [Sup.Ct., N.Y. County] ). Nevertheless, the evidence was legally sufficient to establish the defendant's guilt of the lesser-included offense of criminal possession of a weapon in the third degree (see Penal Law § 265.02[2] ). Accordingly, we reduce the conviction of criminal possession of a weapon in the first degree to criminal possession of a weapon in the third degree, vacate the sentence imposed thereon, and remit the matter to the Supreme Court, Kings County, for the imposition of an authorized sentence for that offense (see People v. Philips, 120 A.D.3d 1266, 1267–1268, 992 N.Y.S.2d 104 ).
The defendant correctly contends that the Supreme Court erred by, in effect, permitting the investigating detective in the case to testify as an expert not only regarding the general hierarchy of the gang to which the defendant belonged, but also as to the relationships between specific gang members, which he knew only as a result of his own participation in the investigation. Allowing the detective, who was intimately involved in the investigation into the gang-related arson, to testify as an expert created a danger that he would end up testifying beyond any cognizable field of expertise as an apparently omniscient expositor of the facts of the case, thereby usurping the fact-finding role of the jury (see People v. Inoa, 25 N.Y.3d 466, 473, 13 N.Y.S.3d 329, 34 N.E.3d 839 ; People v. Melendez, 138 A.D.3d 758, 759, 30 N.Y.S.3d 151 ).
It was also improper, under the circumstances here, to admit into evidence a summary chart depicting the gang hierarchy and membership of the gang, which identified the gang's members by name and their associated arrest photos (see People v. Shields, 100 A.D.3d 549, 550–551, 954 N.Y.S.2d 97 ; People v. Thomas, 226 A.D.2d 1071, 1072, 642 N.Y.S.2d 749 ). Nevertheless, these errors were harmless, as the proof of the defendant's guilt of arson in the first degree and conspiracy in the second degree was overwhelming, and there is no significant probability that, but for the errors, the verdict would have been less adverse (see People v. Inoa 25 N.Y.3d at 472, 13 N.Y.S.3d 329, 34 N.E.3d 839 ; People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Phem, 73 A.D.3d 1088, 900 N.Y.S.2d 883 ; People v. Martin, 54 A.D.3d 776, 777, 863 N.Y.S.2d 491 ; People v. Rivera, 192 A.D.2d 561, 562, 596 N.Y.S.2d 108 ).