The People, Respondent,v.Lyxon Chery, Appellant.

Brief

N.Y.September 15, 2016

APL-2015-00192 To be argued by PATRICIA CURRAN (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - LYXON CHERY, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALICE WISEMAN PATRICIA CURRAN ASSISTANT DISTRICT ATTORNEYS Of Counsel DECEMBER 22, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iii INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT TRIAL ............................................................................................ 5 The People’s Case ....................................................................................................... 5 Defendant’s Case ...................................................................................................... 13 POINT I THE COURT PROPERLY ALLOWED THE PROSECUTOR TO IMPEACH DEFENDANT WITH SIGNIFICANT, UNNATURAL OMISSIONS IN HIS SPONTANEOUS STATEMENT TO OFFICER GUTIERREZ AT THE SCENE ............................................................... 17 A. The relevant record ...................................................................... 18 B. Defendant’s present complaints are unpreserved. .................... 22 C. The trial court properly applied People v. Savage in permitting the contested questioning, because defendant’s failure to make the serious accusations against the victim, while advising the officer of relatively trivial purported misconduct, was an “unnatural omission” that gave rise to the inference that defendant’s subsequent testimony was fabricated. ............................................. 25 D. Even if the trial court erred in permitting the challenged questioning, any such error was harmless. ...................................... 37 POINT II THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT’S REQUEST FOR A MISSING WITNESS CHARGE ............................ 44 A. The relevant record ...................................................................... 45 B. The trial court did not abuse its discretion when it declined to deliver a missing witness charge for Gutierrez’s partner .............. 47 POINT III THE TRIAL EVIDENCE PROVED BEYOND A REASONABLE DOUBT THAT THE VICTIM SUFFERED PHYSICAL INJURY DURING THE ROBBERY ..................................................................................................... 57 CONCLUSION ................................................................................................................... 70 -ii- TABLE OF AUTHORITIES FEDERAL CASES Anderson v. Charles, 447 U.S. 404 (1980) ......................................................................... 26 Doyle v. Ohio, 426 U.S. 610 (1976) ................................................................................... 26 Jenkins v. Anderson, 447 U.S. 231 (1980) ......................................................................... 26 Samuel v. LaValley, 2013 WL 550688 (E.D.N.Y 2013) ................................................... 31 STATE CASES Matter of Jonathan S., 55 A.D.3d 1324 (4th Dept. 2008) ............................................... 67 Matter of Jose B., 47 A.D.3d 461 (1st Dept. 2008) .......................................................... 66 Matter of Philip A., 49 N.Y.2d 198 (1980) ................................................................... 58-59 People v. Almodovar, 62 N.Y.2d 126 (1984) .................................................................... 49 People v. Balan. 25 Misc.3d 88 (App. Term 1st Dept. 2009) ......................................... 68 People v. Barber, 143 A.D.2d 450 (3rd Dept. 1988) ................................................... 35-36 People v. Belge, 41 N.Y.2d 60 (1976) ................................................................................ 23 People v. Bornholdt, 33 N.Y.2d 75 (1973) ........................................................................ 33 People v. Boyd, 58 N.Y.2d 1016 (1983) ............................................................................ 24 People v. Brown, 145 A.D.2d 301 (1st Dept. 1988) ........................................................ 68 People v. Brown, 187 A.D.2d 872 (3rd Dept. 1992) ....................................................... 67 People v. Brunner, 67 A.D.3d 464 (1st Dept. 2009), aff’d, 16 N.Y.3d 820 (2011) ........................................................................................... 55 People v. Buckler, 39 N.Y.2d 895 (1976) .............................................................. 48, 50, 54 People v. Chery, 127 A.D.3d 533 (1st Dept. 2015) ................................................ 4, 29, 50 People v. Chiddick, 8 N.Y.3d 445 (2007) .............................................................. 58-61, 66 -iii- People v. Clarke, 81 N.Y.2d 777 (1993) ............................................................................ 24 People v. Colon, 46 A.D.3d 260 (1st Dept. 2007) ........................................................... 23 People v. Contreras, 108 A.D.2d 627 (1st Dept. 1985) ................................................... 68 People v. Conyers, 52 N.Y.2d 454 (1981) ................................................................... 25, 37 People v. Crimmins, 36 N.Y.2d 230 (1975) ................................................................ 37, 55 People v. De George, 73 N.Y.2d 614 (1989) .................................................................... 25 People v. Delamota, 18 N.Y.3d 107 (2011) ...................................................................... 57 People v. Erts, 73 N.Y.2d 872 (1988) ................................................................................ 48 People v. Fields, 76 N.Y.2d 761 (1990) ............................................................................. 48 People v. Flores, 132 A.D.3d 519 (1st Dept. 2015) ......................................................... 62 People v. Francois, 89 A.D.3d 588 (1st Dept. 2011) ....................................................... 63 People v. Gonzalez, 68 N.Y.2d 424 (1986) .................................................................. 48-50 People v. Gordon, 23 N.Y.3d 643 (2014) ......................................................................... 57 People v. Gray, 86 N.Y.2d 10 (1995) ............................................................................ 23-24 People v. Guidice, 83 N.Y.2d 630 (1994) ......................................................... 58-59, 63-64 People v. Haith, 44 A.D.3d 369 (1st Dept. 2007) ............................................................ 62 People v. Harvey, 309 A.D.2d 713 (1st Dept. 2003)........................................................ 62 People v. Henderson, 92 N.Y.2d 677 (1999) ............................................................... 57-58 People v. Hicks, 128 A.D.3d 1221 (3rd Dept. 2015) ....................................................... 62 People v. Hicks, 154 A.D.2d 713 (2d Dept. 1989) ........................................................... 50 People v. Hodge, 83 A.D.3d 594 (1st Dept. 2011) .......................................................... 63 People v. James, 2 A.D.3d 291 (1st Dept. 2003) .............................................................. 62 People v. Jean, 118 A.D.3d 1024 (2d Dept. 2014) ........................................................... 28 -iv- People v. Jernigan, 41 A.D.3d 331 (1st Dept. 2007) ........................................................ 28 People v. Jimenez, 55 N.Y.2d 895 (1982) .......................................................................... 67 People v. Johnson, 1 N.Y.3d 302 (2003) ........................................................................... 32 People v. Kello, 96 N.Y.2d 740 (2001) .............................................................................. 23 People v. Love, 57 N.Y.2d 1023 (1982) ............................................................................. 25 People v. Macana, 84 N.Y.2d 173 (1994) ..................................................................... 48-50 People v. Martinez, 90 A.D.3d 409 (1st Dept. 2011) ....................................................... 58 People v. McDowell, 28 N.Y.2d 373 (1971) ..................................................................... 58 People v. Mercado, 94 A.D.3d 502 (1st Dept. 2012) ....................................................... 62 People v. Norman, 85 N.Y.2d 609 (1995) ......................................................................... 57 People v. Oree, 58 A.D.3d 473 (1st Dept. 2009) ............................................................. 58 People v. Ortiz, 83 N.Y.2d 989 (1994) ........................................................................ 49, 54 People v. Pavone, __ N.Y.3d __, 2015 WL 9089124 (Dec. 17 2015)............................ 37 People v. Perez, 157 A.D.2d 581 (1st Dept. 1990) .......................................................... 49 People v. Pinero-Baez, 67 A.D.3d 469 (1st Dept. 2009) ................................................. 58 People v. Pope, 174 A.D.2d 319 (1st Dept. 1991) ........................................................... 58 People v. Prashad, 46 A.D.3d 844 (2d Dept. 2007) ......................................................... 28 People v. Qualls, 55 N.Y.2d 733 (1981) ............................................................................ 25 People v. Ramos, 159 A.D.2d 596 (2d Dept. 1990) ......................................................... 50 People v. Rivera, 249 A.D.2d 141 (1st Dept. 1998) ......................................................... 56 People v. Rodriguez, 38 N.Y.2d 95 (1975) ........................................................................ 49 People v. Rojas, 61 N.Y.2d 726 (1984) .............................................................................. 59 People v. Rolando, 168 A.D.2d 578 (2d Dept. 1990) ...................................................... 68 -v- People v. Romero, 7 N.Y.3d 911 (2006) ........................................................................... 25 People v. Sanders, 245 A.D.2d 471 (2d Dept. 1997) ....................................................... 67 People v. Savage, 50 N.Y.2d 673 (1980) .............................. 4, 17, 19-20, 23-24, 26-37, 42 People v. Savinon, 100 N.Y.2d 192 (2003) ................................................................. 48, 50 People v. Smalls, 92 A.D.3d 420 (1st Dept. 2012) ........................................................... 62 People v. Smith, 283 A.D.2d 208 (1st Dept. 2001) .......................................................... 62 People v. Stapleton, 33 A.D.3d 464 (1st Dept. 2006) ...................................................... 62 People v. Stridiron, 33 N.Y.2d 287 (1973) ................................................................... 48-49 People v. Sussman, 298 A.D.2d 205 (1st Dept. 2002) ..................................................... 55 People v. Thomas, 21 N.Y.3d 226 (2013) ......................................................................... 52 People v. Valentine, 212 A.D.2d 399 (1st Dept. 1995) .................................................... 63 People v. Vasquez, 88 N.Y.2d 561 (1996) ......................................................................... 31 People v. Velez, 112 A.D.3d 467 (1st Dept. 2013) .......................................................... 56 People v. Waters, 90 N.Y.2d 826 (1997) ........................................................................... 24 People v. Williams, 25 N.Y.3d 185 (2015)............................................................. 26, 36-37 People v. Williams, 294 A.D.2d 133 (1st Dept. 2002) ..................................................... 55 People v. Williams, 46 A.D.3d 1115 (3rd Dept. 2007) .................................................... 66 People v. Windbush, 163 A.D.2d 591 (2d Dept. 1990) ................................................... 67 People v. Witt, 56 A.D.3d 324 (1st Dept. 2008) ............................................................... 58 People v. Young, 99 A.D.3d 739 (2d Dept. 2012) ........................................................... 67 STATE STATUTES CPL 470.05(2) ....................................................................................................................... 23 N.Y. Const., Art. VI, § 3 ...................................................................................................... 23 -vi- Penal Law § 10.00(9) ............................................................................................................ 57 Penal Law § 160.10(1) ............................................................................................................ 1 Penal Law § 160.10(2)(a) ............................................................................................. 1, 56-57 Penal Law § 160.15(3) ............................................................................................................ 1 -vii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LYXON CHERY, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Eugene M. Fahey, Associate Judge of the Court of Appeals, granted on July 13, 2015, defendant Lyxon Chery appeals from an order of the Appellate Division, First Department, entered April 16, 2015. That order affirmed a February 13, 2013 judgment of the Supreme Court, New York County (Daniel Conviser, J.), convicting defendant, after a jury trial, of Robbery in the First Degree (Penal Law § 160.15[3]), and two counts of Robbery in the Second Degree (Penal Law §§ 160.10[1],[2][a]). Defendant was sentenced on the first-degree robbery count to a determinate prison term of five years to be followed by two and one-half years of post-release supervision, and on each of the second-degree robbery counts to a determinate prison term of three and one-half years to be followed by two and one- half years of post-release supervision, all sentences to run concurrently. Defendant is currently incarcerated pursuant to that judgment. In the late evening of April 19, 2012, Hazan Alhanah was working alone at a delicatessen on the Upper West Side in Manhattan. Towards the end of the evening, as Alhanah was counting money from the cash register, defendant came into the store to buy something, and made a comment about the money. Moments later, another man came into the store and bought something; as he left, he made Alhanah nervous by looking up at the store’s mock surveillance cameras. The unidentified man and defendant then sat together on a fence outside the store. Shortly before midnight, in preparation for closing, Alhanah went outside to bring a large gumball machine into the store. As he was grappling with the machine, the unidentified man hit Alhanah several times with a piece of wood and demanded money. At the same time, defendant said, “Just give him the fucking money,” then told the other man to stop hitting Alhanah, “just get the money” and leave. Defendant’s companion took Alhanah’s wallet from his pocket, and defendant choked Alhanah while pointing a piece of metal at him, asking, “Where’s the money?” Alhanah revealed that he had additional money in his pocket, and defendant took an envelope containing $215 in cash from Alhanah’s pocket. At that point, Ali Hezam Alashmlami, an acquaintance of Alhanah, drove up and saw defendant and Alhanah struggling while Alhanah yelled for help and the third man walked quickly away. The police arrived moments later, and detained both -2- defendant and Alhanah at first. However, after speaking with the witnesses, they released Alhanah and arrested defendant, who complained that Alhanah had kicked his bicycle and that “he should be going to jail too.” The police recovered an envelope containing $215 in cash from defendant’s pants pocket, in the same denominations as the money stolen from Alhanah. By New York County Indictment Number 2470/12, filed on May 15, 2012, defendant was charged with Robbery in the First Degree and two counts of Robbery in the Second Degree. After suppression proceedings not at issue on this appeal, defendant proceeded to trial on December 12, 2012, before the Honorable Daniel Conviser and a jury. On December 17, 2012, defendant was convicted as charged, and, on February 13, 2013, he was sentenced as noted above. On appeal to the Appellate Division, First Department, defendant argued that the trial evidence was insufficient to prove his guilt beyond a reasonable doubt and that the verdict failed to comport with the weight of the evidence, because, inter alia, the evidence failed to prove that Alhanah suffered physical injury. Defendant also asserted that the trial court erred in permitting the prosecutor to impeach him with omissions from his spontaneous statement to the arresting officer at the scene and in refusing to give the jurors a missing witness instruction regarding the People’s failure to call the arresting officer’s partner as a witness. On April 16, 2015, the Appellate Division unanimously affirmed the judgment of conviction. As is relevant here, the court found that the victim's testimony -3- established the element of physical injury, and that the evidence supported the inference that the victim sustained substantial pain as the result of being beaten with a dangerous instrument. People v. Chery, 127 A.D.3d 533, 533 (1st Dept. 2015) (A3- 4).1 In addition, relying on People v. Savage, 50 N.Y.2d 673 (1980), the Appellate Division concluded that the trial court had properly permitted the prosecutor to impeach defendant with omissions from the spontaneous statement he made to the police at the time of his arrest. In so doing, the court emphasized that, “[u]nder the circumstances,” defendant's failure to make the “serious accusations against the victim” that he later made at trial, while instead “only informing the officer of relatively trivial alleged misconduct,” was an “unnatural omission.” Id. (A4). Finally, the Appellate Division determined that the trial court properly exercised its discretion in denying defendant's request for a missing witness instruction regarding the arresting officer's partner since the case did not turn on police credibility, and since there was “no indication that the uncalled officer could have provided material, noncumulative testimony.” People v. Chery, 127 A.D.3d at 533-534 (A4-5). On appeal to this Court, defendant again asserts that the trial court erred in permitting the prosecutor to impeach him with omissions from his spontaneous statement at the scene and in refusing to give the jurors a missing witness instruction. 1 Parenthetical references preceded by “A” are to defendant's appendix. -4- Defendant also renews his claim that the trial evidence failed to prove that Alhanah suffered physical injury as the result of the attack by defendant and his accomplice. THE EVIDENCE AT TRIAL The People’s Case On April 19, 2012, 27-year-old HAZAN ALHANAH was working at a delicatessen on Amsterdam Avenue at 104th Street in Manhattan. Alhanah, who usually worked six to seven days a week, had emigrated from Yemen eight years earlier and lived in New York City with his wife and daughter (Alhanah: A152-156, 195-196). He worked alone in the store each night until closing, which happened at around midnight or 1:00 a.m., whenever there appeared to be no more customers (Alhanah: A157). That evening, sometime before midnight, Alhanah was behind the counter counting money from the register when defendant entered the store. Defendant remarked with a smile, “[Y]ou got money like that?” and Alhanah replied, “It’s only singles” (Alhanah: A160-165). Defendant then walked out (Alhanah: A161-162, 164).2 Outside the store, defendant was “hanging out” with a curly-haired man about six feet tall, who was either black or Dominican – “not too dark” but “not light” 2 Alhanah thought that defendant “got beer . . . or something” when he was inside the store (Alhanah: A162). -5- (Alhanah: A164-165). A couple of minutes after defendant left the store, that man came into the store briefly and made a purchase. While inside, he looked at the ceiling and at the store’s “cameras” – mock surveillance cameras that had been set up to “scare the customers.” This struck Alhanah as unusual and made him nervous (Alhanah: A166-167, 199, 218-219). After leaving the store, the man sat with defendant on a nearby fence for ten to 15 minutes, talking loudly (Alhanah: A164, 168, 170, 176, 223). Feeling that “something” was “wrong,” Alhanah decided to close the store. As part of his preparation to do so, he went to get a gumball machine that sat outside the store, four or five feet from the door, and bring it inside (Alhanah: A167-169). Alhanah grabbed the large, heavy machine and started to carefully slide it towards the door, turning his back on defendant and his companion as he did so. Suddenly, he felt a blow to the back of his neck (Alhanah: A169-170, 182-183). Alhanah turned and saw that defendant’s companion had hit him with a piece of wood. He screamed and tried to move behind the gumball machine, but the man continued to hit him with the piece of wood, striking him several times “really hard” on the back and on his hand while demanding money (Alhanah: A170-171, 174-177). Defendant approached while this was going on and told the other man to “stop hit[ting]” -6- Alhanah and “get the money,” after which they should “get the fuck out of here” (Alhanah: A175-177).3 Defendant’s companion then took Alhanah’s wallet from his pocket (Alhanah: A177, 179). At that point, defendant put his arm around Alhanah’s neck while holding a thin piece of metal pointed toward the area just below Alhanah’s neck. At the same time, while “choking” Alhanah for 15 to 20 seconds, defendant demanded money (Alhanah: A178-179, 183-185; People’s Exhibit 10 [piece of metal]). Earlier that day, Alhanah’s boss had given him a pay envelope, which he counted and then placed in his front pants pocket. It contained $215 in cash, consisting of two 100- dollar bills, a 10-dollar bill, and a 5-dollar bill (Alhanah: A172-173, 202, 207). Believing that defendant was holding a knife and frightened that he would be killed, Alhanah told defendant to “get money out of [his] pocket,” and defendant reached into Alhanah’s pocket and removed the envelope (Alhanah: A178-179, 185, 190, 205- 206, 211). While this was going on, JEFFREY ZAPATA was in his second-floor apartment at 104th Street and Amsterdam Avenue, above Alhanah’s delicatessen.4 Zapata heard what “sounded like an argument” from the street below: yelling and 3 Alhanah also recalled defendant saying, “Just give the fucking money” (A175). 4 Zapata did not know Alhanah’s name; he knew him as “Adam,” and referred to him as “the owner” (Zapata: A104-105). In fact, the deli was owned by Alhanah’s extended family (Alhanah: A195-197). -7- “things that sounded like threats” (Zapata: A100-102). He also heard a “slam,” as if someone had “hit the glass.” At that point, Zapata got up and looked out his window (Zapata: A102). He recalled seeing a “baldheaded man,” who appeared “very drunk,” waving his arms, shouting and threatening, while walking toward a bicycle parked near a tree. At the same time, Alhanah emerged from the store with “something” in his hand.5 Alhanah approached defendant and told him to “get away” from the store. The two men “clashed right away,” and the bald man “overpowered” Alhanah, forcing him back towards the store (Zapata: A102-103, 109, 114-116). Zapata decided to call the police at that point, looking away from the window as he did so (Zapata: A103-104). Shortly afterwards, he looked back and saw ALI HEZAM ALASHMLAMI drive up (Zapata: A103-104; Alashmlami: A235-239). Alashmlami, who was on his way to visit a cousin who worked a few blocks away, saw Alhanah and defendant “fighting” over a piece of wood in front of the store: Alhanah was on the ground, screaming for help, while defendant was crouched over him (Alashmlami: A240-244, 251).6 While still in the car, Alashmlami saw a “skinny” black man about five feet ten to five feet eleven inches tall, with “[l]ight skin tone,” about ten feet away from defendant and Alhanah and walking quickly away, towards 103rd 5 Zapata could not tell what the object was (Zapata: A109, 116). When asked on cross-examination whether what Alhanah was holding was “consistent with maybe a stick, a wooden stick,” Zapata replied, “It could have been” (Zapata: A116). 6 Alashmlami, a native of Yemen, had briefly met Alhanah – whom he knew as “Adam” – at a wedding (Alhanah: A187, 196-97; Alashmlami: A235-238, A241). -8- Street (Alashmlami: A240-243). Alashmlami got out of the car and approached defendant and Alhanah to separate them, while telling Zapata, who was yelling down from his window, to call the police (Alashmlami: A244-245). When he did so, he noticed that Alhanah had a “little scratch on his neck” and on his right arm or hand, while defendant had no visible injuries (Alashmlami: A245-246). For his part, Alhanah recalled that when Alashmlami got out of his car and began “screaming about the police,” defendant’s companion dropped the piece of wood and ran away (Alhanah: A180, 187-188, 192-93). Alashmlami tried to “break[] up the fight” (Alashmlami: A245-246), and “grabbed” defendant, although defendant and Alhanah “kept moving” after that (Alashmlami: A251). Zapata recalled that Alashmlami “pull[ed defendant] back” from Alhanah (Zapata: A104), while Alhanah recalled that Alashmlami told him to push defendant away and said that they had to hold defendant until the police arrived (Alhanah: A187). Alhanah picked up the piece of wood defendant’s compatriot had dropped, in an effort to “h[o]ld [defendant] for the cops.” Defendant was still holding the piece of metal (Alhanah: A188-189, 214-215, 229). Meanwhile, at about 12:05 a.m., Police Officer RAMON GUTIERREZ and his partner were arresting someone on 103rd Street and Amsterdam Avenue. Gutierrez heard a commotion about a block away and the officers headed in that direction (Gutierrez: A120-121). When they arrived at the deli – about three to four minutes (Alashmlami: A246) or 40 seconds to a minute (Alhanah: A188) after Alashmlami had -9- arrived – Zapata was still on the telephone with the police (Zapata: A103-106; People’s Exhibit 2 [911 call]). Gutierrez saw Alhanah and defendant “getting ready to fight”: defendant held a seven-to-eight inch long thin, metal object as if he were “getting ready to stab” Alhanah, while Alhanah was in a “fighting stance” trying “to protect himself.” Gutierrez also noticed a “long wooden board” on the ground (Gutierrez: A120-122, 127-128, 130-132; People’s Exhibit 10 [wooden board]).7 Gutierrez and his partner asked defendant to put the piece of metal down and defendant complied. Not knowing what had happened or whether either man had any other weapons, the officers handcuffed both Alhanah and defendant until they could determine what was going on. Defendant smelled of alcohol but he was coherent and did not appear to be drunk (Gutierrez: A120-122, 141, 145; Alhanah: A188, 219; Alashmlami: A246; People’s Exhibit Number 10 [piece of metal]).8 Gutierrez observed that Alhanah had some “minor cuts on his face,” as well as redness, bruising, and swelling to his hand. Defendant had no visible injuries (Gutierrez: A122-123). After the two men had been handcuffed, Gutierrez spoke with defendant and Alhanah and then with Alashmlami and Zapata, who both 7 Alhanah recalled that he was still holding the piece of wood when the police arrived (Alhanah: A188, 214-215). 8 Zapata looked out his window and saw Alhanah sitting “handcuffed near the tree, like on the curb” (Zapata: A110). He looked “dazed, as if he just got hit over the head or something.” Zapata did not see defendant at that point, and thought that “there’s something wrong here,” so he went downstairs to tell the police what he had seen (Zapata: A110-112). -10- explained what they had seen (Zapata: A110-111; Gutierrez: A122-126, 145; Alashmlami: A246-247). Alhanah, who was visibly “scared and shaking,” told the police that he had been robbed and that “they took his wallet and some money” (Alashmlami: A249-250; see Alhanah: A189-190).9 Defendant asked Gutierrez why Alhanah was not going to jail, and complained, “[H]e kicked my bike, he should be going to jail too” (Guttierez: A124).10 After speaking to everyone, Gutierrez placed defendant under arrest (Gutierrez: A124). He then recovered a white envelope from defendant’s right front pants pocket (Gutierrez: A132-134, 136; Alhanah: 191). The envelope contained a total of $215: two hundred-dollar bills, a ten-dollar bill, and a five-dollar bill (Gutierrez: A132- 136, 142; People’s Exhibit 14 [money]).11 Before showing Alhanah the money, the officer asked him how much money had been taken and what the denominations were, and Alhanah told him (Alhanah: A191). 9 Alashmlami “wasn’t paying attention” to the amount of money Alhanah said had been taken, but believed it was “about a couple of hundred dollars” (Alashmlami: A250). 10 On cross-examination, Gutierrez answered in the affirmative when defense counsel asked whether defendant had told him that “he had had a fight with the complaining witness because the complaining witness kicked and tried to damage his bike” (Gutierrez: A141-142). Gutierrez observed a bicycle chained to a metal rail around a tree (Gutierrez: A124). 11 Gutierrez vouchered the money but not the envelope (Gutierrez: A133-134, 142). He also recovered a wallet from defendant’s pants pocket. The wallet contained approximately $2 and defendant’s identification, and was returned to defendant without being vouchered (Gutierrez: A139). The officers also recovered a backpack that was next to the bicycle, which defendant identified as his. The backpack contained “dozens” of items, many of them bicycle-related, including two bicycle helmets (Gutierrez: A137-138). -11- As a result of the attack, Alhanah sustained a bleeding laceration to his hand. He also suffered bruises to his back that were “black, blue, red” and “painful,” and swelling and bruising on his leg. Alhanah was in a “lot of pain” when he spoke to the officers. Soon after the police arrived, Alhanah felt nauseous and vomited as he sat on the curb (Alhanah: A185-186, 188-189, 201, 220). The police asked him if he wanted to go to the hospital, but Alhanah declined because he could not afford to pay the ambulance or hospital bill. He did not seek any medical treatment for his cuts and bruises (Alhanah: A194, 226). Alhanah’s “injuries lasted” for about ten days, although he did not experience pain “for all 10 days” (Alhanah: A194-195). Later, in a holding cell at the precinct, defendant said, “I know where [Alhanah] works at and I am going to kill him” (Gutierrez: A140). At trial, Alhanah identified defendant as one of the men who robbed him on April 19, 2012 (Alhanah: A161), and Alashmlami identified him as the man he saw attacking Alhanah that night (Alashmlami: A242). Zapata did not identify defendant in court as the “baldheaded man” he saw attacking Alhanah from his window that night. Defendant’s appearance was “consistent with” that man, but Zapata had only a “bird’s eye view” of him from above (Zapata: A106-107). However, Zapata testified that the “baldheaded man” was the man the police later arrested (Zapata: A109-110, 112, 114-115). -12- Defendant’s Case Defendant, who was 53 years old at the time of trial, was born in Haiti and moved to New York when he was 24 years old. Since then, he had held various jobs, including dishwasher and bicycle messenger (Chery: A269-270). In 1996, defendant worked for NADINE ARCHER-GOUNDGI in the kitchen of her restaurant. After Archer-Goundgi closed her restaurant in 2005, defendant occasionally did work for her, and, in March 2012, he painted the basement of her Queens home (Chery: A270; Archer-Goundgi: A256-260). Archer-Goundgi paid defendant $450 in cash for the work: three 100-dollar bills, and three 50-dollar bills (Archer-Goundgi: A259; Chery: A323). Sometime before April 20, 2012, defendant told Archer-Goundgi that he was “still holding some of the money” that she had given him, and showed her two 100- dollar bills, which were “folded very tightly” in a pocket of defendant’s wallet (Archer- Goundgi: A259-262). In April 2012, defendant did not have a regular job, but he repaired and sold “junk” bicycles (Chery: A271). At about 5:00 p.m. on April 19, 2012, defendant rode his bicycle from Brooklyn to Manhattan to visit a friend named “Bogus,” who was a light-skinned “Spanish” man, albeit with darker skin than defendant, about six feet tall, with dark, “black man” hair.12 After leaving his bicycle next to a tree in front of the bike shop that adjoined Alhanah’s deli, defendant joined Bogus in his car. After 12 Defendant had known Bogus for years, but, at the time of trial, he had lost his telephone number (Chery: A305-306). -13- driving around for a while, they found a parking place on Amsterdam Avenue (Chery: A271-274, 305-307). For the next six hours, defendant sat in the car with Bogus, “drinking a couple beers and hanging out” (Chery: A273-274, 307). Other people joined them (Chery: A274). At about 11:00 p.m., Bogus said that he had to go home because he had to work the next day. Defendant got out of the car, and Bogus asked him to buy him a beer before he left. Defendant then went into Alhanah’s deli, and bought three beers from Alhanah – two for Bogus and one for “somebody [Bogus] was talking to” – and a bottle of water for himself. Defendant paid for the drinks with a $20 bill, receiving $15 in change (Chery: A274-275, 283, 308-311). About 15 minutes later, Bogus and the other man drove away. Defendant did not see Bogus again that evening (Chery: A275, 310). When the other men left, defendant remained, sitting on a small metal fence outside the deli and “packing stuff” in his backpack (Chery: A275-276, 315). As he was doing so, defendant saw two teenaged girls hurry out of the deli and walk down the sidewalk, looking scared. Alhanah followed them out of the store and down the street, cursing them, calling them “bitches,” and telling them not to “fucking come around here no more because I will hurt you” (Chery: A276-277, 312-314). Alhanah told defendant that the girls had tried to steal from the store (Chery: A277, 314). When Alhanah came back from chasing the girls, defendant – who believed that Alhanah owned the store – told him that if he chased people from his store in this manner, others would see how he -14- treated customers and would not patronize his store. Alhanah, who said nothing in response, went back into the store (Chery: A277-278, 313-314). Defendant then turned away, put on his bicycle helmet and his backpack, and reached for his bicycle. Alhanah suddenly approached defendant and kicked his bicycle’s back tire several times (Chery: A278). Defendant jumped back, and asked Alhanah, “[W]hat’s the matter with you”? (Chery: A278, 313-316). Alhanah kicked the bicycle again, then ran back into the store. As defendant began walking away with his bicycle, Alhanah returned and hit defendant on the head with a piece of wood. Because defendant was wearing his bicycle helmet, he was not injured, and he kept walking with his bicycle, hoping to get away from Alhanah and get to the subway station. Alhanah stayed with him, hitting him on the backpack and the shoulder while saying, “[M]other fucker, I make sure you don’t go nowhere, I got you” (Chery: A278- 279, A313-318). Finally, defendant let his bicycle fall to the ground, and, when Alhanah swung the piece of wood at him again, defendant grabbed it and he and Alhanah went “back and forth” with the piece of wood. Defendant fought Alhanah for the wooden piece because he feared that if Alhanah gained control of it, he would use it to hurt defendant. Defendant pushed Alhanah against a car and told him to stop “playing with people you don’t know”(Chery: A279-280, 319). At that point, Alashmlami drove up and emerged from his car; the police came shortly afterwards (Chery: A280, 319). When the officers arrived, Alhanah dropped the piece of wood. The police handcuffed the two men and separated them; -15- Gutierrez then spoke to defendant and his partner spoke to Alhanah (Chery: A280- 282, 320-321). Defendant told Gutierrez that Alhanah had been “kicking [his] bike,” that they then “got into a fight,” and that the wooden board belonged to Alhanah. He asked why he was going to jail and why Alhanah was not being arrested too (Chery: A282, 321-322). Although Alhanah told the police that defendant had dropped a piece of metal he had in his hand, defendant had nothing in his hand during the fight. The metal object recovered by the police, which was an axle or “quick release handle” for a bicycle, belonged to defendant, but it was lying on the ground during the fight because defendant had forgotten to pack it in his backpack with the rest of his property (Chery: A281, 301, 318-319, 322, 324). The police did not search defendant on the scene. However, back at the precinct, they searched him and took his wallet. The wallet contained two of the 100- dollar bills Archer-Goundgi had paid him in early March, “rolled up” and “hiding.” He also had $15 in his pocket, which was the change he had received after paying for the beer and water with a $20 bill earlier that evening (Chery: A282-283, 322-323). Defendant did not steal money from Alhanah. He believed that the police were arresting him for fighting, and only learned that he was being charged with robbery when he met his attorney in Central Booking. After being released on bail, defendant went to a Brooklyn hospital because his wrist was numb where Alhanah had hit him in his hand, and he was unable to move his fingers. A doctor advised defendant that although he would “stay swollen for a while,” he was “going to come -16- out.” The doctor offered defendant a prescription for a painkiller, but said that it was fine to continue taking ibuprofen instead (Chery: A284-287). POINT I THE COURT PROPERLY ALLOWED THE PROSECUTOR TO IMPEACH DEFENDANT WITH SIGNIFICANT, UNNATURAL OMISSIONS IN HIS SPONTANEOUS STATEMENT TO OFFICER GUTIERREZ AT THE SCENE (Answering Defendant’s Brief, Point I). At trial, defendant testified that Alhanah viciously attacked him with a wooden board after defendant had chided Alhanah for chasing two teenaged girls out of his store. Yet, at the time he was arrested, when defendant argued to police that the victim should be arrested as well, the only reason he gave was that the victim had kicked his bicycle, omitting any mention of the much more serious assault by Alhanah that he later alleged at trial. Relying on People v. Savage, 50 N.Y.2d 673, 678, cert. denied, 449 U.S. 1016 (1980), in which this Court approved cross-examination about unnatural omissions in a defendant’s initial statement to the police, the trial court permitted the People to cross-examine defendant regarding these significant omissions. Now, on appeal, defendant argues that this was error. According to defendant, because his statement to police was spontaneous, non-inculpatory, and made before he was given Miranda warnings, it was not subject to the rule enunciated in Savage (Defendant’s Brief at 24-33). However, these contentions are unpreserved, because defendant did not articulate his present arguments before the trial judge; -17- indeed, he did not even explicitly oppose the People’s application to impeach defendant with the omissions. In any event, defendant’s arguments are meritless, because his failure to explain to the police at the scene that the victim had attacked him with a wooden board was an exceptionally “unnatural” omission, in light of defendant’s complaint that the victim should be arrested for the relatively minor misdeed of kicking defendant’s bicycle. A. The relevant record After a Huntley hearing, the hearing court denied defendant’s motion to suppress his statements. With respect to his statement to Gutierrez at the time of his arrest, the court found that, although “not Mirandized,” the statement was admissible because it was spontaneous and “not the product of investigation [sic]” (A70). At trial, Officer Gutierrez testified without objection that, while the officers were speaking to witnesses on the scene, defendant said, “[W]hy isn’t [Alhanah] going to jail, he kicked my bike, he should be going to jail too” (Gutierrez: A124).13 When defendant later took the stand, he testified on direct examination that he admonished Alhanah after seeing Alhanah chasing, cursing at, and threatening two teenaged girls he accused of trying to steal from the deli. According to defendant, Alhanah first walked away, then returned and kicked defendant’s bicycle tire before hitting 13 On cross-examination, Gutierrez answered affirmatively when defense counsel asked, “And when you went to talk to [defendant] about what his version of what happened, he told you that he had had a fight with the complaining witness because the complaining witness had kicked and tried to damage his bike, correct?” (A141-142). -18- defendant several times on the head, back, and shoulder with the piece of wood Defendant tried to get away but Alhanah kept hitting him until defendant grabbed the piece of wood and struggled with Alhanah for control of it (Chery: A276-280, 313- 319). Defendant further claimed that when the officers arrived, he told them that he and Alhanah “got into a fight,” because Alhanah was kicking defendant’s bicycle, and that the wooden board was Alhanah’s, not defendant’s (Chery: A-282). Before he began cross-examining defendant, the prosecutor asked Justice Conviser to allow him to question defendant regarding omissions in his statement to the officer (A288). The prosecutor reminded the court of defendant’s direct testimony and argued that “logically” defendant would have advised the officer at the scene about Alhanah’s alleged attack when he told him that Alhanah had kicked his bicycle, but he had not done so (A288). Justice Conviser responded that he was “very cautious” about granting the People’s application because, unlike the “normal impeachment by omission situation,” this proposed impeachment implicated defendant’s “very fundamental right” to remain silent (A291). At that point, the prosecutor provided the court and defense counsel with copies of People v. Savage, 50 N.Y.2d at 673. Based on that case, he argued that, while a defendant could never be impeached on his “omission to make any statements,” here defendant made some statements to police but left out others that he would “logically have included,” such as his claim that Alhanah had attacked him “over these girls” (A292-293). -19- Defendant’s attorney then remarked that what “jump[ed] out” after looking at Savage was that Savage “involve[d] a case in which Miranda warnings were given.” The judge replied that he did not “really think that is the issue here,” and the prosecutor urged that the “same logic” would apply to pre- and post-Miranda statements. Defense counsel said nothing further (A293). After a break to give the matter “a little more thought,” Justice Conviser granted the People’s application. Initially, he noted that he did not think that the proposed cross-examination even implicated defendant’s “right to be silent after the arrest,” since he was unsure whether defendant was under arrest at that point. In any event, even assuming defendant was under arrest, the judge found that this case “falls under the rule” of Savage and its progeny, since defendant had tried to explain his conduct to police at the scene, then had testified at trial to a “further explanation that he naturally would have been expected to give” (A294). During cross-examination, without any objection from defendant, the prosecutor briefly pursued the line of questioning at issue here. After acknowledging that he had not told Officer Gutierrez that he saw two girls evicted from the deli, defendant insisted that he had told the officer that Alhanah cursed him and warned him to get away from his store. Defendant also claimed that he had told the officer about being hit with the wooden board, and that Alhanah “got the wood because they come, they come out of the car,” and that he and Alhanah were “fighting. . . winding -20- side to side to each other, like wrestling” (Chery: A321). The following exchange then occurred: Q What did you tell the officer? A I told the officer, this is all about my bicycle, he kicking my bike, why I got locked up for, what I am going to jail for, I don’t do nothing, why can’t he go to jail. Q What is everything you told the officer? Is that everything you told him? A That’s all I tell him. Q You didn’t tell him that he hit you with a wooden board, did you? A I don’t tell him he hit me with a wooden board. We was fighting with the wood board. Q But you didn’t tell him that the man had hit you with the wooden board? A I told him this is all about my bicycle, he hit me with the wood board, and then he hit me in my hand, and this is when we got into a fight (Chery: A321-322).14 On summation, after first arguing that the People’s witnesses were credible and that any inconsistencies in their accounts were explicable by their differing vantage points and the different times at which they began observing what was happening (A352-361), the prosecutor turned to defendant’s testimony. He contended at length 14 Shortly afterwards, the prosecutor again obtained defendant’s agreement that he had never told the police that he had seen Alhanah chase the girls out of the store (Chery: A321). -21- that defendant’s story was not credible because it made no sense and because it was contradicted by the testimony of all of the other witnesses and the physical evidence (A361-366). During that portion of his argument, in a single paragraph, the prosecutor reminded the jurors of the omissions from defendant’s on-the-scene statement to Gutierrez, pointing out that defendant did not tell the police “the whole story” that he told the jurors, but instead “never said to the police . . . that man attacked me with the wooden board, that man was yelling at girls and got upset with me for interjecting, . . . I have an innocent excuse for where my money came from” (A363). Defendant made no objection to this portion of the People’s summation. In its final jury charge, the trial court instructed the jurors that, in evaluating a witness’s credibility, they could: consider whether a witness testified to a fact here at the trial that the witness omitted to state at a prior time when it would have been reasonable and logical for the witness to have stated the fact. In determining whether it would have been reasonable and logical for the witness to have stated the omitted fact, you may consider whether the witness’s attention was called to the matter, and whether the witness was specifically asked about it (A380). B. Defendant’s present complaints are unpreserved. On appeal, defendant claims that the trial court erred in permitting the prosecutor to use omissions in his statement to police at the scene to impeach his trial -22- testimony. According to defendant, because his statement to Gutierrez was a “spontaneous” one, made without Miranda warnings and without “specific questions directing [defendant’s] attention to the omitted facts,” defendant “could not have been expected to volunteer additional information,” and therefore the omissions from his on-the-scene exculpatory statement were not a “most unnatural” omission and “not indicative of a recent fabrication of mitigating facts” (Defendant’s Brief at 24). Defendant further contends that the alleged prejudice from the impeachment was “exacerbated” when the prosecutor argued in summation that the omissions undermined defendant’s credibility (Defendant’s Brief at 30). As a threshold matter, however, these arguments are unpreserved, and thus this Court has no jurisdiction to consider them. N.Y. Const., Art. VI, § 3; see People v. Belge, 41 N.Y.2d 60, 62 (1976). Of course, to preserve a claim for appellate review as a matter of law, a defendant must register a timely, specific objection that alerts the trial court to the same issue sought to be raised on appeal. See CPL 470.05(2); People v. Kello, 96 N.Y.2d 740, 744 (2001); People v. Gray, 86 N.Y.2d 10, 20 (1995). Yet here, when the People applied to be allowed to impeach defendant regarding the omissions, defendant never even said that he opposed the application. Rather, although the People initially made a brief argument in support of their request, and elaborated on that argument when the trial court had expressed its concern that the proposed cross-examination would impact on defendant’s right to silence, defense counsel did no more than comment, after reading Savage, that Miranda warnings had -23- been given in that case (A293). Thus, the court’s ruling on the People’s application could not serve to preserve any issue for review because it was not made “in re[s]ponse to a protest by a party.” CPL 470.05(2); see People v. Colon, 46 A.D.3d 260, 263 (1st Dept. 2007) (even if court “expressly decided” the issue “in response to the prosecutor’s statement of the People’s position,” issue not preserved for review because there was no defense protest). Moreover, defendant did not articulate any theory below as to why it mattered that no Miranda warnings had been given in the instant case, and he never suggested that the prior statement had to be inculpatory or made in response to questioning in order for Savage to apply. He also raised no complaint regarding Gutierrez’s testimony regarding defendant’s statement; made no objection to any of the prosecutor’s subsequent questions regarding the omissions; and made no objection of any kind when the prosecutor referred to the omissions on summation. Thus, even if defense counsel’s vague comment regarding Miranda warnings could be construed so broadly as to constitute a “protest by a party” to the court’s ultimate ruling, it still could not have alerted the trial court to any of the specific claims defendant now raises. Accordingly, since defendant’s appellate claims were not properly raised before the trial court, they are unpreserved and beyond this Court’s power of review. See, e.g., People v. Waters, 90 N.Y.2d 826, 828 (1997) (defendant’s objection to testimony regarding his post-arrest silence on hearsay grounds did not preserve claims that the testimony penalized him for exercising his constitutional right to silence and violated -24- the State evidentiary prohibition on the admission of such evidence on the People’s direct case, since he “never identified either one of these theories to the Trial Judge”); People v. Gray, 86 N.Y.2d at 10; People v. Clarke, 81 N.Y.2d 777, 778 (1993); People v. Boyd, 58 N.Y.2d 1016, 1018 (1983); People v. Love, 57 N.Y.2d 1023, 1025 (1982); People v. Qualls, 55 N.Y.2d 733 (1981); see also People v. Romero, 7 N.Y.3d 911, 912 (2006). C. The trial court properly applied People v. Savage in permitting the contested questioning, because defendant’s failure to make the serious accusations against the victim, while advising the officer of relatively trivial purported misconduct, was an “unnatural omission” that gave rise to the inference that defendant’s subsequent testimony was fabricated. Even if considered on the merits, defendant’s present complaints must fail. Of course, as a matter of New York evidentiary law, a defendant generally may not be impeached with his pre-trial silence. People v. Conyers, 52 N.Y.2d 454, 457 (1981); see People v. De George, 73 N.Y.2d 614, 618 (1989). That is because a defendant's “pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth,” since a defendant may refrain from coming forward with an exculpatory version of events prior to trial for a variety of innocent reasons that are unrelated to the veracity of his trial testimony. And, at the same time, evidence of that silence carries a “substantial” risk of prejudice. People v. Conyers, 52 N.Y.2d at 458-59; see People v. De George, 73 N.Y.2d at 618-19. A far different circumstance is presented, however, when a defendant does not remain silent before trial, but instead gives a statement to law enforcement. In that -25- instance, this Court has recognized that it is “an elementary rule of evidence, and of common sense, in our State and almost every other jurisdiction, that, when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment.” People v. Savage, 50 N.Y.2d at 679. Accordingly, this Court has held that a defendant who does not remain silent, but instead makes a statement to law enforcement, may be impeached with material omissions from that statement should he take the stand at trial and give a different account. Id.; see People v. Williams, 25 N.Y.3d 185, 191-92 (2015).15 Here, far from being an abuse of discretion, the trial court’s ruling was a straightforward and correct application of Savage. After all, defendant was far from silent before trial. Rather – apparently as soon as he realized that he was going to be arrested or as soon as he realized Alhanah was being released – he spontaneously 15 Of course, defendant’s present claim is purely one of state evidentiary law. This is understandable since, while the United States Supreme Court has found it to be a violation of due process to draw unfavorable inferences from a defendant’s post-Miranda silence, see Doyle v. Ohio, 426 U.S. 610 (1976), that Court has also recognized that a defendant who chooses to make a statement may properly be impeached with inconsistencies between that statement and his trial testimony. Anderson v. Charles, 447 U.S. 404, 408-09 (1980). Moreover, where, as in this case, the defendant made his pre-trial statement prior to being arrested and being advised of his Miranda rights, the federal constitution is not implicated even by the use of a defendant’s complete silence, since that silence was not the product of governmental assurances of his right to remain silent. Jenkins v. Anderson, 447 U.S. 231 (1980). Thus, as defendant seems to recognize – and as he certainly never disputed below – he has no federal constitutional claim that the People’s cross-examination or summation comments impacted on his right to remain silent. -26- demanded to know why Alhanah was not being arrested as well, and asserted that Alhanah should also be going to jail because he had kicked defendant’s bicycle (Gutierrez: A124). Indeed, defendant acknowledged during his testimony that he offered that explanation to the officers in order to tell them “what was going on” (Chery: A282). Yet, according to defendant’s trial testimony, the account he gave police at the scene was woefully and inexplicably incomplete. Specifically, defendant told the jury that Alhanah had done much more than kick defendant’s bicycle; instead, according to defendant, he had followed up that trivial and non-criminal offense by seriously assaulting defendant, hitting him in the head, back and shoulder with the piece of wood and attempting to assault him further until defendant was able to grab it (Chery: A278-280, 313-319). Of course, not only would this version of events have provided a much more compelling justification for arresting Alhanah than defendant’s on-the-scene account, but it would also have excused that portion of defendant’s conduct that the police and Alashmlami had observed, by allowing him to claim that he was acting in self-defense when he struggled over the wooden board with Alhanah. And yet, although intent on presenting the most favorable version of events to the police on the scene, he said nothing about this alleged vicious attack. As a matter of “common sense,” as this Court recognized in Savage, 50 N.Y.2d at 679, that failure was highly relevant to evaluating the credibility of defendant’s trial testimony. -27- Indeed, the facts here are very similar to those in Savage. In that case, upon being read the Miranda warnings, the defendant volunteered, “I'm glad I'm caught– I'm tired,” then admitted that he had shot the victim with a gun he possessed during an altercation outside the bar. But, although the defendant in Savage testified at trial that he had shot the victim, he added by way of justification that the shooting had occurred during an altercation precipitated when the victim tried to rob him, and that the actual discharge of the gun was inadvertent. People v. Savage, 50 N.Y.2d at 677. Likewise, here, defendant did not remain silent when he made his on-the-scene claim that the victim had kicked his bicycle and should be arrested for that, while failing to mention that he had merely been defending himself against a vicious attack with a wooden board. Thus, as in Savage, what defendant omitted from his statement to Gutierrez was “far from an inconsequential detail or a collateral matter”; rather, it was an allegation that “put an entirely different cast on the event,” and its omission from defendant’s initial statement was, therefore, “at least as calculated to distort his recitation as a most affirmative falsehood.” People v. Savage, 50 N.Y.2d at 679; see, e.g., People v. Jean, 118 A.D.3d 1024 (2d Dept. 2014) (where defendant spoke to police and narrated “essential facts of his involvement in the crime,” it was proper to cross-examine him about his “failure to inform police at that time of exculpatory circumstances to which he testified at trial”); People v. Prashad, 46 A.D.3d 844 (2d Dept. 2007) (defendant properly questioned about his “failure to provide police officers with certain exculpatory information at the time of arrest”); People v. -28- Jernigan, 41 A.D.3d 331 (1st Dept. 2007) (proper to question the defendant at trial and point out unnatural omission from defendant’s post-arrest statement, where defendant testified that victim attacked him with razor, causing him to defend himself, while during his post-arrest statement defendant volunteered that the victim had “verbally provoked” the assault). Under the circumstances, as the Appellate Division recognized, this case is governed by Savage, and defendant’s failure to make the “serious accusations” against the victim that he made at trial, while informing the officer instead of “relatively trivial alleged misconduct,” was an “unnatural omission” and a proper subject of cross-examination. People v. Chery, 127 A.D.3d at 533. Defendant does not now contest the continuing validity of Savage, or ask this Court to overrule it. Instead, in various ways, he attempts to distinguish the present case from Savage, but those efforts are to no avail. Initially, raising the only claim that was even arguably hinted at below, albeit not in any developed form, defendant suggests that impeachment with omissions from a pre-trial statement is only permitted under Savage when the pre-trial statement was made after the defendant had waived his Miranda rights. According to defendant, this “distinction is significant,” because a defendant who has waived his Miranda rights is “speaking deliberately and in a controlled environment,” and can therefore be “held accountable for any omissions” in a way that this defendant, who spoke spontaneously, cannot (Defendant’s Brief at 27). However, this Court’s holding in Savage did not limit cross-examination about “unnatural omissions” only to omissions from statements made after Miranda -29- warnings, and the fact that the pre-trial statement at issue in Savage was made after Miranda warnings was irrelevant to the reasoning underlying the Court’s recognition that “unnatural omissions” from a pre-trial statement are highly relevant to the credibility of a defendant’s trial testimony. Indeed, if anything, the fact that the pre-trial statement in Savage occurred after Miranda warnings led this Court to be more cautious in upholding the cross- examination at issue, since it raised the possibility that the defendant had remained partially silent in his pre-trial statement “in reliance on the privilege” against self- incrimination. See People v. Savage, 50 N.Y.2d at 681-82. It was in rejecting this explanation for the defendant’s omission that the Court observed, in language now relied on by defendant (see Defendant’s Brief at 26), that a defendant who, “instead of invoking his right to silence, chooses to speak in the unfettered exercise of his own will” after being alerted to his rights, “should not now be permitted to forestall impeachment of his credibility with the cavalier claim that he did not” intend to “cast aside his cloak of silence.” People v. Savage, 50 N.Y.2d at 681 (citations and internal quotation marks omitted). In other words, the Court was merely making the point that, where a defendant does freely choose to speak after being assured of his right to remain silent, the fact that he received Miranda warnings does not allow him to claim that telling omissions from his pre-trial statement were in reliance on that right. For this reason, the Savage rationale is even more clearly applicable to a defendant’s pre-Miranda statements than to his post-Miranda statements, since the -30- defendant has not yet been assured by the authorities that his silence would not be used against him. Thus, there can be no confusion over whether a defendant remained silent about the unnatural omissions at issue because he had been told during his Miranda warnings that he could do so. In fact, this Court emphasized in Savage that there was “not the slightest suggestion that government action, passive or active, and whether via the Miranda warnings or otherwise, induced the omission,” People v. Savage, 50 N.Y.2d at 680. Likewise, here, there can be no doubt that defendant’s spontaneous statement was as “unfettered” an exercise of his will, uncompelled by government action, as the considered post-Miranda statement made by the defendant in Savage.16 Defendant’s broader suggestion that he “could not be held accountable” for omissions from his spontaneous statement because “they could not be the product of 16 Notably, as authority for the proposition that the administration of Miranda warnings is a pre-requisite to cross-examination under Savage, defendant cites only Samuel v. LaValley, 2013 WL 550688 (E.D.N.Y 2013) (Defendant’s Brief at 27). To the extent that the opinion of a single federal district judge on an issue of New York evidentiary law has any relevance at all, however, that case in no way supports defendant’s reading. In Samuel, while considering an ineffective-assistance-of-counsel claim on habeas review, the court found that defense counsel erred in not objecting to the prosecutor’s questioning of the defendant about whether he had volunteered exculpatory information as police officers were driving him to the precinct. In doing so, the judge acknowledged that the defendant subsequently waived his right to remain silent and made a statement to police, but found that this fact did not bring the questioning within the Savage exception because the “post-arrest silence to which the prosecutor referred” occurred “before [the defendant] waived his right to remain silent.” Samuel v. LaValley, 2013 WL 550688 at *8. In context, it is clear that the district court’s focus was not on whether the defendant had been read Miranda warnings before speaking; rather, it was on the fact that the defendant was not being cross-examined about omissions from a statement he made – as the defendant did here – but about his complete silence at a time before he had decided to speak to the police at all. -31- deliberation or calculation” (Defendant’s Brief at 27), is equally untenable. Defendant now seems to suggest that his statement to Gutierrez was the equivalent of an “excited utterance,” made under circumstances that rendered defendant’s “normal reflective processes inoperative” (Defendant’s Brief at 27) (quoting People v. Vasquez, 88 N.Y.2d 561, 574 [1996]). But, to the extent that this is true, defendant’s omission of crucial exculpatory facts casts at least as great a shadow over his credibility as their omission from a carefully considered pre-trial statement would have done. After all, the implication of the impeachment allowed in Savage was not that the defendant, calculatedly or otherwise, had omitted true exculpatory facts from his initial statement to police; rather, it was that he calculatedly invented false exculpatory assertions prior to taking the witness stand. And, a spontaneous statement made by someone whose normal reflective processes are stilled is at least as reliable as a statement made “deliberately and in a controlled environment” after Miranda warnings (Defendant’s Brief at 27); see, e.g., People v. Johnson, 1 N.Y.3d 302, 306 (2003) (explaining that the underpinning of the hearsay exception for excited utterances is “the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy”). Thus, if defendant’s statement to Gutierrez were, indeed, an excited utterance that accurately reflected what had just occurred, the omission of the most -32- damning and relevant accusations against Alhanah from that statement would be an even stronger indication that those accusations were an invention.17 In a related argument, defendant contends that the cross-examination at issue here was improper because his failure to “include every detail of exactly what occurred that night” was not “due to deliberate calculation, but because he was not given an opportunity to ‘narrate the essential facts of his involvement’” (Defendant’s Brief at 28) (quoting People v. Savage, 50 N.Y.2d at 676). In making this claim, it does not appear that defendant is contending that the police somehow prevented him from saying everything he wished to say in support of his claim that Alhanah should be jailed, and certainly there is nothing in the record that would support such a claim. Rather, citing People v. Bornholdt, 33 N.Y.2d 75 (1973), he complains that there was no showing that his “‘attention was called’ to explain the specifics of what occurred that night to the responding officers,” and that therefore the omissions from his “spontaneous” statement were not probative with respect to his credibility (Defendant’s Brief at 29) (quoting People v. Bornholdt, 33 N.Y.2d at 88). Nothing in the Savage rationale, however, requires the defendant’s attention to have been drawn specifically to “the facts embraced in the question propounded at 17 To be sure, although defendant’s statement was, as the hearing court found, “spontaneous,” in the sense that it was not the product of police interrogation (A70), this does not mean that it was actually a truthful excited utterance as opposed to the best lie that defendant could come up with on the spur of the moment. Either way, impeachment with “unnatural omissions” from that statement was clearly appropriate. -33- trial.” People v. Bornholdt, 33 N.Y.2d at 88. In Bornholdt itself, the Court relied on “human experience” in recognizing that “unless asked directly about a matter a person may quite normally omit it from a narrative description.” Id. at 89. In a case such as this, however, that observation is of very limited applicability. First, given the vast disparity in significance between the bicycle kicking that defendant mentioned and the vicious and dangerous attack about which he was silent, the attack is simply not something that even a dispassionate witness would “normally omit” from a description of events if not specifically questioned about it. More importantly, however, defendant was not simply a witness describing what he had seen or experienced. Rather, defendant here was speaking to Gutierrez with a purpose – to excuse himself and to accuse Alhanah and bring about his arrest. In so speaking, he himself focused on and chose the facts that he deemed most significant and likely to bring about the desired result. The fact that defendant nonetheless said nothing about circumstances which, if true, would have been much more likely to support his claims than the trivial actions to which he did refer, is precisely the sort of telling and unnatural omission that is highly relevant in evaluating the credibility of defendant’s trial testimony. Defendant also alleges that Savage does not apply here because defendant’s on- the-scene statement was not “devastatingly incriminating,” his explanation did not “‘surface for the first time at trial,’” and he maintained his innocence from the time of his arrest (Defendant’s Brief at 27-28). It is unclear what defendant means when he -34- says that his explanation did not “surface” for the first time at trial, since the record contains no suggestion that defendant said anything to anyone about Alhanah’s alleged attack on him before taking the witness stand. And, it is also far from clear that defendant’s statement actually was exculpatory, since he merely asserted that Alhanah should “also” go to jail, for the trivial misdeed of kicking defendant’s bicycle, while saying nothing that would have excused an attack on Alhanah. In any event, although the pre-trial statement at issue in Savage was an incriminating one, nothing in the Savage rationale depends on that fact. On the contrary, it is just as “counter to human experience,” People v. Savage, 50 N.Y.2d at 679, for a defendant attempting to exculpate himself and to incriminate another to omit the facts that would best accomplish those goals as it was for the defendant in Savage to admit to shooting someone without providing a justification for the shooting. To support his argument that Savage applies only when a defendant’s initial statement is incriminatory, defendant relies solely on People v. Barber, 143 A.D.2d 450 (3rd Dept. 1988) (Defendant’s Brief at 28). However, Barber is far from persuasive here. In that case, the defendant excused his presence in the victim’s house by saying that he had gone inside after seeing a “large man” coming out of the victim’s driveway. He subsequently named an acquaintance as the man he saw running down the driveway. 143 A.D.2d at 450-451. In finding questioning about the defendant’s pre-trial failure to disclose the identity of that man to be improper, the Third Department found his motive for remaining silent as to the man’s identity to be -35- “insolubly ambiguous,” musing that possible reasons might have included fear of retribution, the desire not to betray an acquaintance, or a “partial attempt to exercise his right to remain silent.” Id. at 451. Thus, the court concluded that it was “not ‘unnatural’” for the defendant to omit the acquaintance’s identity from his pre-trial statements. Id. at 452. To be sure, the court also distinguished Savage by pointing out that the defendant there had made an incriminating statement to police, whereas Barber had “maintained his innocence from the very beginning and . . . throughout asserted his sighting of another man as his reason” for being in the victim’s home. Id. This may simply mean, however, that the court believed that the identity of the man was not a critical fact that would have altered the fundamental tenor of the defendant’s statement, since in both his pre-trial statement and his trial testimony he offered the same explanation for entering the house. Here, by contrast, the information that defendant omitted “put an entirely different cast on the event,” and its omission was therefore highly telling and a proper subject for impeachment. People v. Savage, 50 N.Y.2d at 679. Finally, to the extent that defendant suggests that this Court’s recent decision in People v. Williams, 25 N.Y.3d 185 (2015), requires a different result (Defendant’s Brief at 25), he is plainly wrong. In Williams, the People elicited evidence of the defendant’s failure to answer certain questions during a custodial interrogation on their case in chief, and also “invited the jury to infer an admission of guilt from [the] defendant’s failure to deny the accusations.” 25 N.Y.3d at 194. In reversing the -36- defendant’s conviction, the Court explicitly noted that, since the defendant did not testify at trial, there was no need to even consider whether “unusual circumstances such as those present in Savage . . . would have allowed the People to use defendant’s selective silence to impeach him if he had testified.” People v. Williams, 25 N.Y.3d at 192. Certainly, the Court said nothing to suggest any disagreement with or limitation on the holding in Savage, or to suggest that it would not apply in case such as this, where the defendant omitted the most salient exculpatory allegations from his pre-trial statement.18 D. Even if the trial court erred in permitting the challenged questioning, any such error was harmless. As noted, defendant’s present complaint solely implicates New York evidentiary law, and raises no issue of constitutional dimension. Thus, even if the trial court had erred in permitting the questioning at issue, reversal would not be required unless there was a significant probability that, but for the error, the jurors would have 18 Nor does this Court’s recent decision in People v. Pavone, __ N.Y.3d __, 2015 WL 9089124 (Dec. 17 2015), affect the analysis in this case. In Pavone, the People were permitted to impeach a defendant advancing a defense of extreme emotional disturbance with the fact that he failed to tell the police, while in custody, what happened the night of the shootings. The Court found that the use of “evidence of silence for impeachment purposes” violated the due process clause of the State Constitution, an issue that it noted had been “left open” in People v. Conyers, 52 N.Y.2d at 454. Of course, any such claim is unpreserved in this case; in any event, the impeachment at issue in Pavone, as in Conyers, involved defendant’s failure to give any explanation to police, not, as in Savage and in this case, unnatural omissions from the story he chose to tell them. -37- acquitted defendant. People v. Crimmins, 36 N.Y.2d 230, 242 (1975). That was plainly not the case here. Initially, the proof of defendant’s guilt was overwhelming. As defendant largely does not dispute, Alhanah’s testimony, if credited, satisfied each element of the charged crimes.19 And, of course, since the officers arrested defendant at the scene, there could be no possibility of mistaken identity. Moreover, the jurors had every reason to credit Alhanah’s plausible and straightforward trial testimony, especially since his account was not meaningfully impeached during cross-examination and was significantly corroborated by the physical evidence and the testimony of the People’s other witnesses. In that regard, Alhanah’s injuries, particularly contrasted with defendant's lack of visible injury, confirmed that he had been attacked, while Gutierrez’s testimony supported Alhanah’s assertion that the attack had been part of a robbery. After all, Gutierrez – who had no remotely plausible motive to lie – testified that he recovered $215 in cash from defendant, in the same envelope and the same denominations that Alhanah said had been taken from him. And, Gutierrez also observed defendant holding the piece of metal with which Alhanah said he had been threatened, and recovered the metal piece, along with the wooden board, at the scene. 19 The only element of the charged crimes that defendant now disputes is the element of physical injury with respect to one count of second-degree robbery (See Defendant’s Brief at 40-49). However, as discussed in Point III, infra, there was ample trial evidence that Alhanah suffered physical injury as a result of the attack during the robbery. -38- Additional corroboration was provided by Alashmlami and Zapata. In particular, Alashmlami, while arriving on the scene late, provided meaningful support for Alhanah’s testimony that he had been attacked by two men when he testified that observed a man who generally matched the description of defendant’s companion walking quickly from the scene as he approached (Alashmlami: A240-243).20 Moreover, while both Zapata and Alashmlami saw only later parts of this fast-moving, violent and chaotic incident, each from a vantage point that limited what he saw, they each confirmed that defendant was the aggressor in his encounter with Alhanah. Thus, Zapata, who was drawn to his window by yelling and commotion below, testified that when the two men “clashed,” defendant “overpowered” Alhanah, forcing him back towards the store (Zapata: A102-103), while when Alashmlami first noticed the two men, he saw that defendant had the upper hand in their struggle, while Alhanah was “screaming” for help (Alashmlami: A243-244). Of course, the description of these events given by the People’s witnesses was not entirely consistent, and neither Zapata nor Alashmlami saw any property taken 20 To be sure, Alhanah recalled that the second assailant dropped the piece of wood and fled after Alashmlami had already gotten out of the car and started towards them (Alhanah: A180, A187), while Alashmlami said defendant and Alhanah were already struggling over the piece of wood when he first noticed them (Alashmlami: A240-243). However, given the frightening struggle in which Alhanah was engaged, it would hardly be surprising if he could not pinpoint the exact moment when the other man fled, nor would it be surprising if that man had reacted to the approach of Alashmlami’s car by beginning to disassociate himself from the robbery before Alashmlami had noticed anything unusual going on. -39- from Alhanah that night. Defendant uses these facts to claim that any error cannot have been not harmless because the testimony of the People’s witnesses was “riddled with inconsistencies” and because there was “contradictory evidence as to whether or not a robbery even occurred that night,” since Zapata and Alashmlami described what they saw as only a “fight,” or a “scuffle,” rather than a robbery (Defendant’s Brief at 31). But, as noted, neither Zapata nor Alashmlami saw the entire incident from start to finish; moreover, neither had the same vantage point, and each man focused on different things when observing defendant and Alhanah. Moreover, Alhanah, caught in a terrifying struggle that began with unexpected blows from a wooden stick, and ended with him handcuffed and “dazed” (Zapata: A110), could hardly be expected to remember each detail of the rapidly-unfolding events or the exact sequence in which they occurred. When combined with the obvious difficulty that both Alhanah and Alashmlami experienced in testifying in English, and the emotional effect that testifying about these terrifying events had on Alhanah (see Alhanah: A171-172; People’s Summation: A354), it was inevitable that the accounts by the three men would differ.21 And, since Zapata and Alashmlami caught only the tail-end of the 21 Defendant asserts that Zapata “corroborated” defendant’s account that defendant was preparing to leave on his bicycle when Alhanah attacked him with a “stick” (Defendant’s Brief at 32). In fact, Zapata testified that when he first looked down and saw defendant, he was “heading toward, I think it was a bike or something, toward a tree” (Zapata: A102), and generally testified that he was going towards the tree where the bicycle was chained (Zapata: A107-109). When asked on cross-examination whether defendant had “tried to leave” and was attempting to unchain his bicycle, Zapata said that defendant “wasn’t attempting to -40- (Continued…) crime, without having any idea what had gone before, it is only natural that they would perceive what they were seeing as a fight rather than a robbery. So, too, the fact that neither Zapata nor Alashmlami testified to seeing the recovery of the white envelope in no way undermines Officer Gutierrez’s testimony on that score. Certainly, it made absolutely no sense that Gutierrez would decide to perjure himself about recovering the cash-filled envelope from defendant solely to provide some corroboration for Alhanah, a complete stranger. Moreover, neither Zapata nor Alashmlami testified that the envelope was not recovered; they simply did not mention it. Of course, even assuming that Zapata and Alashmlami were still on the scene at the time, there was no evidence that either man was looking in defendant’s direction when Gutierrez was searching him, or that, even if they had been, they were close enough or at the proper angle to notice the recovery of the envelope; they also had no reason to pay attention to that seemingly insignificant detail even if they were able to perceive it. Thus, the absence of further confirmatory testimony from them regarding the recovery of the envelope is simply meaningless. And, that Gutierrez failed to voucher the white envelope meant no more than that he did not see any value to retaining the envelope, perhaps because, in view of Alhanah’s leave” and repeated that he was just “going toward a bike” while yelling and cursing (Zapata: A114). As to what he saw Alhanah holding, Zapata testified, “I believe he was holding something. I don’t know what it was” (Zapata: A109), and “I couldn’t tell what it was” (Zapata: A116). When asked by defense counsel whether the object was “consistent with maybe a stick,” Zapata replied, “It could have been” (Zapata: A116). -41- ______________________ (…Continued) shaken state and difficulty with English, Gutierrez was not made aware of its significance at the time.22 In short, as the jury plainly recognized, the testimony of all the People’s witnesses, taken together, provided compelling proof of all the charges. Significantly, too, the contested cross-examination, even if erroneously allowed, could have had little prejudicial effect. After all, the jury had already heard, without objection, Gutierrez’s testimony about what defendant said on the scene. Thus, as this Court recognized in Savage, the prosecutor’s cross-examination of defendant “could have had no more than cumulative effect,” since the “juxtaposition of the inclusion of the exculpatory matter in the defendant’s own testimony” and “its absence from the officer’s recounting” of his conversation with defendant “could hardly have been lost on the jury,” even if not high-lighted on cross-examination. People v. Savage, 50 N.Y.2d at 680, n.2. Moreover, the prosecutor in this case never suggested that defendant’s omissions constituted direct evidence of his guilt. Rather, he used them only as a small part of his argument that defendant’s testimony was not credible (see A363). By 22 Defendant also suggests that the evidence was undermined because the officers were initially unable to determine “who was the aggressor or who was the victim” (Defendant’s Brief at 32). However, given the posture of both men when the police first saw them – which Gutierrez described as “two individuals getting ready to fight,” defendant “with a metal object” and Alhanah “in a fighting stance” (Gutierrez: A120-122) – it was hardly surprising that, knowing nothing about what had led up to this moment, the officers stabilized the scene by handcuffing both men until they could learn more. It is difficult to see how this prudent police work has any bearing on the strength of the People’s evidence. -42- far the greater portion of the prosecutor’s attack on defendant’s credibility was a cogent dissection of the ways in which defendant’s story was far-fetched and unworthy of belief (A361-366). Thus, for example, the prosecutor pointed out that defendant’s explanation for his lack of injury from being struck in the head with a wooden board was that he was wearing his bicycle helmet, which was contradicted by Zapata’s identification of him from above as the “baldheaded man,” and invited the jury to consider how unlikely it was that Alhanah would have been inspired to attack defendant multiple times with a wooden board simply because he championed two teenagers suspected of shoplifting (A362-363). Indeed, given the absurdity of defendant’s story, this additional ammunition in the attack on his credibility could hardly have made any difference in the outcome of the case. Finally, the trial court’s instructions provided the jury with appropriate guidance on evaluating the significance of defendant’s omissions. Specifically, the jurors were told that, in evaluating witness credibility, they were permitted to “consider whether a witness testified to a fact here at the trial that the witness omitted to state at a prior time when it would have been reasonable and logical for the witness to have stated the fact,” but they were also told that, in determining whether it would have been “reasonable and logical for the witness to have stated the omitted fact,” they could consider whether the witness’s attention had been “called to the matter” and whether the witness was specifically asked about it (A380). In light of these instructions, and the minimal and cumulative role that this evidence played in the -43- People’s case, the contested cross-examination can provide no basis for reversing defendant’s conviction. * * * In sum, contrary to defendant’s unpreserved claims, the trial court and the Appellate Division, First Department properly applied this Court’s precedent in determining that it was appropriate to allow the prosecutor to question defendant about the unnatural omissions from his on-the-scene statement. POINT II THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT’S REQUEST FOR A MISSING WITNESS CHARGE (Answering Defendant’s Brief, Point II). On appeal, defendant claims that the trial court erred in refusing to deliver a missing witness charge regarding Officer Tunis, who was Officer Gutierrez’s partner. According to defendant, Tunis’s testimony would not have been cumulative because the issues in the case were in “sharp dispute” and Officer Gutierrez’s and Alhanah’s trial accounts were purportedly “diametrically opposite” to Zapata’s and Alashmlami’s (Defendant’s Brief at 37-39). Defendant’s claim is partially unpreserved and entirely meritless. -44- A. The relevant record At trial, before opening statements, defense counsel stated that the prosecutor had advised him that the People would not call Gutierrez’s partner, Officer Tunis, to testify at trial (A75). Counsel pointed out that, according to the testimony at the suppression hearing, Tunis had arrived at the scene with the arresting officer, and he asserted that Tunis had seen “the events taking place” that “form[ed] the subject matter of the indictment.” Thus, counsel intended to ask for a missing witness charge if the People did not call Tunis as a witness (A75). The prosecutor responded that Tunis’s testimony would be cumulative to Gutierrez’s, and averred that the People were not calling him because it would be a “waste of time” to call both officers. Justice Conviser then said that he would rule on the application at the time of the charge conference, and defense counsel said, “Okay” (A75-76). At a charge conference at the end of the evidence, defense counsel renewed his request for a missing witness charge as to Tunis (A327). The judge responded that he was not inclined to give such an instruction because there was no “reason to believe that his testimony would not be non-cumulative [sic]” (A327). The judge then asked whether defense counsel could point to any reason why Tunis’s testimony would not be cumulative. Counsel replied that, “[n]o matter what [Tunis] says,” he would be “contradicting somebody,” because there were “different versions” of “what the scene was when the police arrived” (A327-328). Counsel also pointed out that defendant had testified that “each officer” interviewed “each participant” separately, -45- and averred that, since Tunis had apparently been the one to speak with Alhanah, “we have no idea what was said” (A328). The judge noted in response that both Gutierrez and Alhanah had testified on that score, and said that he did not “know that there is any dispute about what the complainant said,” as opposed to “what happened between the complainant and the defendant” (A328-329). Defense counsel then asked whether it was not “Officer Tunis [sic]” who had testified that “when he came on the scene the defendant was holding the bicycle part in a threatening manner towards [Alhanah] and [Alhanah] wasn’t holding anything” (A328). The judge replied that he “just mean[t]” that he did not know why Tunis “would be expected to give testimony that’s different than [O]fficer Gutierrez who arrived at the scene at the same time” (A329). The judge then assured defendant that he could, if he wished, “make the argument” and “point out that [Tunis] wasn’t here,” but said that he did not “know that it rises to the level of a missing witness instruction when you have two police officers arriving at the scene, and there is no reason to believe that the second officer would give testimony that’s different than the first officer would give” (A329). However, while “not inclined to grant the request,” the judge promised that he would “give it some more thought” (A329). At that point, the prosecutor remarked that the missing witness charge should not be given for two reasons. First, because Tunis’s testimony would “simply be cumulative” to that of Gutierrez, and second, that there had been “no showing” that Tunis’s testimony would be “hurtful to the People’s case -46- and helpful to the defendant’s case” (A329). The judge agreed, “Right. That’s the other reason” (A329). The issue of the missing witness instruction was not brought up again. Defendant made no mention of the People’s failure to call Tunis in his summation, and no missing witness instruction was included in the court’s final charge. B. The trial court did not abuse its discretion when it declined to deliver a missing witness charge for Gutierrez’s partner On appeal, defendant claims that the trial court was wrong to deny his request for a missing witness charge. In defendant’s view, Tunis’s testimony would not have been cumulative because the issues in the case were in “sharp dispute,” and Gutierrez and Alhanah’s testimony was “diametrically opposite” to the accounts given by Zapata and Alashmlami with regard to three issues: Alhanah’s injuries; the recovery of the white envelope; and whether defendant was holding a weapon when the police arrived. Thus, according to defendant, Tunis’s testimony would have provided “an additional, and necessary, perspective” to assist the jury in “evaluating the credibility of the other witnesses,” and would not have been cumulative (Defendant’s Brief at 37). Defendant’s claim is partially unpreserved and meritless. Initially, although pressed by Justice Conviser below to point to any reason why Tunis’s testimony would not be cumulative, defendant made no mention of either the recovery of the envelope or Alhanah’s injuries. Rather, he simply pointed to the “different versions” of “what the scene was when the police arrived,” and also -47- suggested that Tunis was the only one who could testify to what Alhanah had told him about what had happened (A327-328). Having never presented his other arguments to the trial court, defendant has, at best, preserved the contention that Tunis’s testimony would have been non-cumulative as to whether defendant had the metal object in his hand when the officers came on the scene, or whether the object was already on the ground. In any event, defendant’s contention is without merit. As a starting point, it is well established that the People are not required to call every witness to a crime to testify at trial. See, e.g., People v. Macana, 84 N.Y.2d 173, 180 (1994). Accordingly, a defendant is not entitled to an adverse inference charge every time the People fail to produce a particular witness. People v. Gonzalez, 68 N.Y.2d 424, 427-28 (1986); see People v. Erts, 73 N.Y.2d 872, 874 (1988); People v. Buckler, 39 N.Y.2d 895, 897 (1976); People v. Stridiron, 33 N.Y.2d 287, 292 (1973). Rather, the missing witness charge is designed to remedy the situation in which a party makes a strategic decision to deliberately withhold the testimony of a witness who is under that party's control because the witness would give truthful testimony harmful to that party's case. People v. Savinon, 100 N.Y.2d 192, 197 (2003). Thus, a defendant is entitled to such a charge only if he has made a prima facie showing that the uncalled witness is “knowledgeable about a material issue upon which evidence is already in the case” and that the uncalled witness “would naturally be expected to provide non[-]cumulative testimony favorable to the [opposing] party.” People v. -48- Gonzalez, 68 N.Y.2d at 427-28; see also People v. Fields, 76 N.Y.2d 761, 763 (1990). Once this prima facie showing is made, the opposing party may defeat the moving party’s request if they “account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate.” People v. Gonzalez, 68 N.Y.2d at 428. This can be done by establishing either that the witness has no knowledge about the issue, that the issue is immaterial or irrelevant, that the witness’ testimony would be cumulative, that the witness is unavailable, or that the witness is not under the People’s control. People v. Gonzalez, 68 N.Y.2d at 427-428. To determine whether a witness’s testimony is cumulative, the trial court must examine the proposed testimony “in light of the facts and circumstances of each case.” People v. Gonzalez, 68 N.Y.2d at 430. One factor in this determination is whether the uncalled witness “might have made the difference” on a material issue. See People v. Rodriguez, 38 N.Y.2d 95, 101 (1975). In analyzing this question, courts have considered whether or not other witnesses called to testify were impeached on a material issue in the case. See People v. Ortiz, 83 N.Y.2d 989, 990-91 (1994); People v. Perez, 157 A.D.2d 581 (1st Dept. 1990). Moreover, a missing witness charge need not be given if there is no indication in the record that the uncalled witness “would have contradicted or added to” the evidence already admitted at trial. People v. Almodovar, 62 N.Y.2d 126, 133 (1984). Further, in assessing the need for a missing witness charge, courts have repeatedly stated that “there is no duty on the prosecutor [. . .] to make a complete -49- and detailed accounting to the defense of all law enforcement investigatory work.” People v. Stridiron, 33 N.Y.2d 287, 292 (1973); see People v. Macana, 84 N.Y.2d at 180; People v. Buckler, 39 N.Y.2d at 897; People v. Ramos, 159 A.D.2d 596 (2d Dept. 1990); People v. Hicks, 154 A.D.2d 713 (2d Dept. 1989). Thus, “providing that there is no suppression of evidence potentially favorable to the defendant,” People v. Hicks, 154 A.D.2d at 713, not every police officer connected to a case is required to testify. And, of course, the issue is entrusted to the sound discretion of the trial judge, whose ruling will not be disturbed on appeal so long as the record supports the inferences and conclusions drawn below. People v. Savinon, 100 N.Y.2d at 197; People v. Macana, 84 N.Y.2d at 177; People v. Gonzalez, 68 N.Y.2d at 430. Guided by these principles, as the Appellate Division found, People v. Chery, 127 A.D.3d at 533, the trial court properly exercised its discretion in denying defendant’s request for a missing witness charge because defendant failed to show that Tunis could have provided material, non-cumulative testimony. Of course, there was no suggestion at trial that Tunis would have been in a position to witness the commission of the charged crimes or even any physical contact between defendant and Alhanah, since all witnesses agreed that the police did not arrive at the scene until defendant and Alhanah had been separated. Moreover, as Justice Conviser noted, nothing in the record suggests that Tunis observed anything outside of the presence of Gutierrez, who did testify. -50- To be sure, defendant now identifies three allegedly material issues that he claims were “in sharp dispute,” as to which Tunis would have been in a position to make observations: whether Gutierrez recovered the white envelope from defendant; whether Alhanah had visible facial injuries; and whether defendant was holding the piece of metal when the police arrived (Defendant’s Brief at 37-38). However, to the extent that any of those issues were material, Justice Conviser correctly found that there was no reason to believe that Tunis would have had non-cumulative testimony to give. With respect to the only one of the three topics that defendant arguably mentioned below – whether the metal object was in defendant’s hand or on the ground when the police arrived – the jury heard from two witnesses that it was in his hand and from no witnesses, other than defendant, that it was not. In that regard, although neither Alashmlami nor Zapata testified to seeing the object in defendant’s hand, neither testified that it was not there, and Zapata, in particular, was not in a position to have seen what, if anything, defendant had in his hand when the police arrived. Similarly, with respect to the recovery of the envelope, Gutierrez and Alhanah both testified that it was recovered from defendant’s pocket and neither Alashmlami nor Zapata contradicted that. Rather, as discussed in Point I, supra, they simply did not mention seeing its recovery, and there was nothing in the record to suggest that they were paying any attention to what the police were doing, even assuming they were still on the scene at that point. -51- As to Alhanah’s injuries, defendant asserts, relying on his own testimony that Tunis spoke with Alhanah while Gutierrez was speaking with defendant, that Tunis had a “better opportunity” to have observed Alhanah’s injuries, especially his facial injuries, than Gutierrez did (Defendant’s Brief at 37). Of course, Gutierrez testified that he also spoke with Alhanah, and nothing in defendant’s testimony, even if credited, establishes that Tunis had any better opportunity to view Alhanah than Gutierrez did. Moreover, the jury heard from three witnesses that Alhanah had some kind of minor visible injuries: Gutierrez recalled “minor cuts” to the face as well as redness, bruising and swelling to his hand (Gutierrez: A122-123); Alashmlami, as he rushed from his car to try to break up the struggle, observed a scratch on Alhanah’s neck and on his arm or hand (Alashmlami: A245); and Alhanah explained that he had a bleeding cut to his hand as well as more serious injuries – the painful bruising and swelling to his back and leg – that would not have been visible to any other witness on the scene (Alhanah: A185-186). The issue defendant now identifies as to which Tunis allegedly had non-cumulative testimony to give – whether Alhanah had facial lacerations – is certainly not a material one, since, as discussed in Point III, infra, it was Alhanah’s other injuries that established the element of physical injury for the second-degree robbery count. Moreover, any inconsistencies in the observations and recollections of the witnesses on this point were easily explainable by the different focus each witness had, both at the time of the occurrence and afterwards, and could -52- hardly have cast any doubt on their credibility, regardless of whether Tunis noticed any facial lacerations. Responding to what he claims was an argument made by the People below, defendant asserts that he was not required to “make a ‘showing’ that Tunis’ testimony would be beneficial to the prosecution.” In support of this claim, he relies on People v. Thomas, 21 N.Y.3d 226 (2013), for the proposition that he was not required to make a “showing of proof as to the substance of Tunis’s testimony” (Defendant’s Brief at 38-39). In fact, the prosecutor below made so such argument. Rather, he suggested that, in addition to the cumulative nature of Tunis’s testimony, a missing witness charge should not be given because there was no “showing” that Tunis’s testimony would be “hurtful to the People’s case and helpful to the defendant’s case” (A329). Of course, the People do not now maintain that defendant was required to establish the content of Tunis’s testimony or that it would actually have harmed the People. To the extent that defendant is suggesting that, by asking defense counsel if there was “something” counsel could “point out . . . a reason why [Tunis’s] testimony would not be cumulative” (A327), the judge was placing the burden on defendant to show what Tunis’s testimony would have been, he is mistaken. Given what the court said, it is plain that the judge reached his own decision that Tunis’s testimony would be merely cumulative and only asked defense counsel if he could point to anything that might change his mind. -53- Defendant also seems to suggest, as he did below, that Tunis’s testimony was material and non-cumulative because he spoke to Alhanah, who had “admitted” giving “false statements” to the officers about his possession of the wooden board (Defendant’s Brief at 39). It is unclear what defendant means by this, since he provides no record citation for the assertion that Alhanah ever “admitted” giving a false statement to the police, and the People have been unable to find any such testimony in the record. In any event, the alleged fact – testified to only by defendant – that Tunis had interviewed Alhanah while Gutierrez spoke with defendant, could not mean that Tunis had material, non-cumulative testimony to give because, as Justice Conviser recognized, there was no material issue as to what Alhanah told the police. Indeed, it could hardly have been proper to allow the jury to presume that Tunis would have testified unfavorably to the People on that score if the People had called him, since the People would not have been allowed to elicit Tunis’s hearsay testimony regarding what the victim said to him, even if it were favorable to them. And, of course, had defendant actually thought that Tunis could testify to a prior inconsistent statement by Alhanah, he could have called Tunis himself for that purpose. In short, given Gutierrez’s testimony and the absence of meaningfully contradictory testimony from other witnesses on any topic on which Tunis could be expected to have knowledge, it was not an abuse of discretion for the trial court to find that Tunis’s testimony would have been cumulative. See People v. Ortiz, 83 -54- N.Y.2d at 990 (not unreasonable for trial court to refuse missing witness instruction on ground that nontestifying undercover officer’s testimony “would have added only cumulative evidence,” where purchasing undercover and arresting officer “testified concerning identification aspects of the case”); People v. Buckler, 39 N.Y.2d at 897 (missing witness charge properly denied where People did not call “both detectives who witnessed the confession,” since defendant made “no showing that the uncalled witness would have given different testimony”); People v. Brunner, 67 A.D.3d 464 (1st Dept. 2009) (court properly denied defendant's request for missing witness charges as to several officers, since none of them would have provided material, non- cumulative testimony), aff’d, 16 N.Y.3d 820 (2011); People v. Sussman, 298 A.D.2d 205, 205-06 (1st Dept. 2002) (“The trial court properly declined to deliver a missing witness charge with respect to the second officer who was present when defendant gave his post[-]arrest statement since the now retired officer could not provide any material, noncumulative testimony”); People v. Williams, 294 A.D.2d 133, 133 (1st Dept. 2002) (affirming denial of request for missing witness instruction where record does not indicate missing witness’ testimony would have added to another officer’s testimony). Finally, it is worth emphasizing that, even had the trial court granted defendant’s request, there is no significant probability that the trial’s outcome would have been any different. See People v. Crimmins, 36 N.Y.2d at 242. As discussed in Point I, supra, the trial proof of defendant’s guilt was genuinely overwhelming. And, -55- had the court delivered the standard missing witness instruction, it would simply have permitted but not required the jurors to draw the inference that Tunis’s testimony would not have supported the People’s position on the limited issues as to which he could have given any testimony. See CJI 2d [NY], Missing Witness. Notably, defendant’s attorney thought the notion that the People were hiding something by not calling Tunis to be so unpersuasive that he did not bother to make the argument in his summation, even though the judge had explicitly told him he could do so. Under those circumstances, there is no significant probability that the failure to give the missing witness charge contributed to defendant’s conviction. See People v. Velez, 112 A.D.3d 467 (1st Dept. 2013); People v. Rivera, 249 A.D.2d 141, 142 (1st Dept. 1998). * * * In sum, since defendant failed to show that Tunis would have provided non- cumulative testimony on any material issue, the trial court did not abuse its discretion in denying defendant’s request for a missing witness charge. -56- POINT III THE TRIAL EVIDENCE PROVED BEYOND A REASONABLE DOUBT THAT THE VICTIM SUFFERED PHYSICAL INJURY DURING THE ROBBERY (Answering Defendant’s Brief, Point III.) On appeal, defendant challenges the legal sufficiency of a single element of one of the charges against him. According to defendant, the People failed to establish that Alhanah suffered either “substantial pain” or “impairment of physical condition” as a result of the robbery, and therefore the People failed to prove the “physical injury element” of second-degree robbery under Penal Law § 160.10(2)(a) (Defendant’s Brief at 40). Defendant’s claim is utterly meritless, as the trial evidence, viewed in the light most favorable to the People, established that Alhanah sustained physical injury during the robbery. Of course, evidence is legally sufficient to support a conviction if there is “any valid line of reasoning [that] could lead a rational trier of fact, viewing the evidence in the light most favorable to the People, to conclude that the defendant committed the charged crime.” People v. Norman, 85 N.Y.2d 609, 620 (1995). When an appellate court reviews the trial evidence for legal sufficiency, “‘the People are entitled to all reasonable evidentiary inferences.’” People v. Gordon, 23 N.Y.3d 643, 649 (2014) (quoting People v. Delamota, 18 N.Y.3d 107, 113 [2011]). The reviewing court “must assume that the jury credited the People’s witnesses and gave the prosecution’s evidence the full weight it might reasonably be accorded,” and the court must -57- “marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof.” Id. at 649 (quotation marks and citations omitted). By these standards, the People’s proof was plainly sufficient. In order to prove defendant guilty of Robbery in the Second Degree under a physical injury theory, the People were required to prove that defendant forcibly stole property from Alhanah and that, in the course of that robbery, he or another participant in the crime caused physical injury to Alhanah. Penal Law § 160.10(2)(a). The Penal Law defines “physical injury” as “an impairment of physical condition or substantial pain.” Penal Law § 10.00(9); see People v. Henderson, 92 N.Y.2d 677, 680 (1999). The People are not required to prove both impairment of physical condition and substantial pain, but only one or the other. People v. McDowell, 28 N.Y.2d 373, 375 (1971); see People v. Henderson, 92 N.Y.2d at 680. Nor does physical injury require any particular degree of impairment or pain, People v. McDowell, 28 N.Y.2d at 375, so long as the injury rises above the level of injury caused by “petty slaps, shoves, kicks, and the like[.]” People v. Henderson, 92 N.Y.2d at 680 (citations omitted); see Matter of Philip A., 49 N.Y.2d 198, 200 (1980); People v. Martinez, 90 A.D.3d 409, 410 (1st Dept. 2011); People v. Oree, 58 A.D.3d 473, 474 (1st Dept. 2009). Thus, while pain must be “more than slight or trivial,” it need not be “severe or intense to be substantial.” People v. Chiddick, 8 N.Y.3d 445, 447 (2007). -58- Notably, in determining whether the degree of pain inflicted upon a victim was “substantial,” the jurors may consider the victim’s subjective expression of pain, as well as other objective factors, including the nature of the injury, whether it is the kind of injury that is expected to bring with it more than a little pain, whether medical treatment was sought, and the assailant’s motive. See People v. Chiddick, 8 N.Y.3d at 447; People v. Guidice, 83 N.Y.2d 630, 636 (1994); People v. Pope, 174 A.D.2d 319, 321 (1st Dept. 1991). However, contrary to defendant’s view (Defendant’s Brief at 42), “[p]hysical injury may be established through a victim’s uncorroborated testimony.” People v. Witt, 56 A.D.3d 324, 325 (1st Dept. 2008); see People v. Pinero-Baez, 67 A.D.3d 469, 469 (1st Dept. 2009); see People v. Guidice, 83 N.Y.2d at 636. The question of whether the evidence was sufficient to establish physical injury is ultimately one for the trier of fact to decide, and, as long as an objective basis in the record supports the jurors’ finding of physical injury, this Court should defer to that determination. See People v. Guidice, 83 N.Y.2d at 636; People v. Rojas, 61 N.Y.2d 726, 727 (1984); Matter of Philip A., 49 N.Y.2d at 200. This Court’s decision in Chiddick is especially instructive here. In that case, the defendant was trying to commit a burglary in a building in which the victim worked. The victim tried to stop him, and during the ensuing struggle, the defendant bit the victim on his left ring finger, causing the nail to break and bleed. People v. Chiddick, 8 N.Y.3d at 446. The defendant fled, but the victim pursued him in a car, eventually cornering him and turning him over to the police. Id. The victim then went to the -59- hospital, where he received a tetanus shot and a bandage. Id. At trial, the victim testified that that his pain was between “[a] little” and “a lot” and was “moderate.” Id. at 447. There is no indication how long the pain lasted. The Court determined that the victim’s subjective description of the more than slight or trivial pain he experienced, combined with the objective nature of the injury, the fact that the victim sought medical treatment, and the defendant’s motive in inflicting the injury, all supported a finding of substantial pain. Id. at 447-448. Here, there was undoubtedly an objective basis in the record for finding that the actions of defendant and his accomplice constituted more than a “petty slap,” and that the results of those actions were anything but “slight or trivial.” First, the attack on Alhanah was precisely the type that would be expected to produce the injuries to which he testified. In that regard, Alhanah testified that defendant’s accomplice hit Alhanah several times “really hard” in the back of his neck, on his back, and on his hand with a piece of wood (Alhanah: A169-171, 174-177). Defendant also put his arm around Alhanah’s neck and “choked” Alhanah while at the same time holding a thin piece of metal pointed at Alhanah’s throat (Alhanah: A177-181, 183-185, 190, 207). As a result of these attacks, Alhanah was left with a laceration to his hand that was bleeding, and “black, blue, red” bruises to his back that were “painful,” as well as swelling and bruising on his leg. At the time he spoke with the police, Alhanah was in “a lot of pain” because of his injuries, to the point where he felt nauseous and actually -60- vomited (Alhanah: A185-186, 188-189, 201, 220). His “injuries lasted” for about 10 days, although he did not experience pain “for all 10 days” (Alhanah: A195).23 Importantly, “viewed objectively,” the bruising that resulted from repeated blows with a piece of wood is precisely the sort of “experience that would normally be expected to bring with it more than a little pain.” People v. Chiddick, 8 N.Y.3d at 447. Moreover, Alhanah’s testimony that he was “in a lot of pain” when he spoke to the police and that the vividly-colored bruises to his back were “painful” also “confirm[ed] that the pain was not trivial.” Id. In Chiddick itself, the victim testified that he experienced “moderate” pain, “[i]n between” “a little” and “a lot,” with no apparent description of how long the pain lasted or whether it impaired him in any way. Nonetheless, the Court found that record sufficient to “support a finding of substantial pain.” People v. Chiddick, 8 N.Y.3d at 447. And here, while Alhanah did not specify precisely how long he was in pain, his use of the phrase, “Not for all 10 days,” indicates that it continued for a significant portion of the ten days that his injuries lasted. That this should be so is consistent with human experience of the type 23 Defendant asserts that Alhanah testified that “he did not have physical pain for the entire 10 days, but rather, felt emotional pain because he was ‘scared’” (Defendant’s Brief at 43) (emphasis in the original). That is not what Alhanah said, however. When asked whether he “fe[lt] pain for those 10 days,” the transcript records Alhanah as replying, “Not for all 10 days. I feel bad but, you know, it was hurt, you know, how much they scare you or not about how much is the pain, pain is still going to go” (Alhanah: A195). Unfortunately, whether because of Alhanah’s difficulty with English, the court reporter’s difficulty with his accent, or a mere transcription error, this passage is clearly somewhat garbled, and thus it is simply impossible to know what Alhanah meant to say here. -61- of deep black and blue bruising that Alhanah described (Alhanah: A186), which itself is consistent with being hit “really hard” (Alhanah: A176-177) with a wooden board or stick. Given that, as Chiddick makes clear, the standard for “substantial pain” that constitutes physical injury is not a particularly stringent one, Alhanah’s testimony certainly met that standard.24 Indeed, both before and after Chiddick, courts in this State have consistently found the type of injury and pain Alhanah experienced to constitute physical injury. See e.g., People v. Flores, 132 A.D.3d 519 (1st Dept. 2015) (jury “could have reasonably inferred” more than slight or trivial pain where defendant kicked victim, causing bruises and pain that lasted a few days, and also punched victim in mouth with such force that he bent the braces on her upper teeth and broke a metal wire on the braces, thereby causing the braces to dig into her gums and the wire to cut her lip); People v. Hicks, 128 A.D.3d 1221, 1222 (3rd Dept. 2015) (victim suffered contusion with slight swelling to leg, pain and difficulty walking for several days, and was prescribed pain medication); People v. Mercado, 94 A.D.3d 502 (1st Dept. 2012) (jury could infer substantial pain where defendant punched victim with closed fist, 24 Another Chiddick factor – the motive behind the crime – further buttresses the jury’s finding of physical injury. People v. Chiddick, 8 N.Y.3d at 448. After all, this was not remotely a case in which the injuries inflicted resulted from “petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives.” Id. Instead, the obvious motive of defendant and his accomplice was to inflict enough pain on Alhanah to incapacitate him and to force him to deliver up his money without resistance. -62- causing swelling and bruising to the face and left eye); People v. Smalls, 92 A.D.3d 420 (1st Dept. 2012) (defendant threw hard plastic pamphlet holder at victim’s face, causing cut to the face that was swollen and painful and became more painful after the incident); People v. Haith, 44 A.D.3d 369, 370 (1st Dept. 2007) (“abrasions, bruising and swelling,” inflicted when the defendant dragged the victim by purse straps along the ground and which the victim testified caused her pain); People v. Stapleton, 33 A.D.3d 464, 465 (1st Dept. 2006) (victim suffered a swollen temple, which she treated with ice and a pain reliever for a day and a half); People v. James, 2 A.D.3d 291, 291 (1st Dept. 2003) ( “defendant punched the victim twice in the face during the robbery, causing pain, swelling and headaches”); People v. Harvey, 309 A.D.2d 713, 713 (1st Dept. 2003) (victim, struck in head by pistol, “suffered painful swelling and bruising for three days, requiring treatment by ice packs”); People v. Smith, 283 A.D.2d 208 (1st Dept. 2001) (defendant “punched the victim on the side of the head during the robbery, causing a bump and a bruise with resulting soreness, as well as pain when eating for approximately a week thereafter”); People v. Valentine, 212 A.D.2d 399, 399 (1st Dept. 1995) (victim suffered a swollen and sore neck, back and arm after being pushed by the defendant). Defendant nonetheless suggests that the evidence did not sufficiently prove that Alhanah suffered physical injury because the People presented no “objective evidence” of injury, such as photographs or medical records, or testimony that Alhanah employed home remedies or lost time from work (Defendant’s Brief at 43- -63- 44). However, while each of the types of evidence whose absence defendant notes can be a factor in determining whether physical injury has been proven, none is a prerequisite for such a finding. Thus, for example, it is well established that whether a victim sought medical treatment is only one of various factors that bear on the proof of physical injury, and the absence of medical treatment does not require a finding that there was no physical injury. See People v. Guidice, 83 N.Y.2d at 636 (“Lack of medical treatment is but a factor to consider in resolving” whether physical injury exists since “pain is subjective and different persons tolerate it differently”); see People v. Hodge, 83 A.D.3d 594, 595 (1st Dept. 2011) (“injuries that did not require any medical treatment” may suffice to establish physical injury); see People v. Francois, 89 A.D.3d 588, 588 (1st Dept. 2011) (same). Here, the fact that Alhanah declined to go to the hospital on the night of the attack is not a meaningful indication that his injury was “slight or trivial,” since he explained that he declined the suggestion of an ambulance because he could not afford to pay the ambulance or hospital bill (Alhanah: A194). And, however painful, the injuries Alhanah suffered – minor lacerations and bruising – could not have been meaningfully treated by a medical professional. Moreover, while testimony that Alhanah missed work might have provided further evidence to support a finding of physical injury, the absence of such testimony does not negate such a finding, in light of the fact that “pain is subjective and different persons tolerate it differently,” People v. Guidice, 83 N.Y.2d at 636, and in light of the financial circumstances that led -64- Alhanah to refuse medical treatment and would presumably have dictated that he remain at his low-paying job despite the pain. Similarly, the fact that there were no photographs of Alhanah’s bruising, swelling and lacerations cannot be fatal to a finding of physical injury. In the absence of photographs, whether or not Alhanah sustained the bruises he described presented a question of credibility for the jury, and it must be assumed that the jury resolved that question in the People’s favor. Moreover, although the nature of Alhanah’s most serious injuries meant that no other witness on the scene saw them, covered as they would have been by his clothing, there was testimony from three witnesses that provided some confirmation that Alhanah had suffered injury. In that regard, Gutierrez observed that Alhanah had “some bruises, swelling and redness on his hand,” as well “minor cuts on his face” (Guttierrez: A122), while Alashmlami, even in the heat of the moment as he rushed to break up the altercation between defendant and Alhanah, noticed scratches on Alhanah’s neck and his hand or arm (Alashmlami: A245). Defendant now suggests that Alhanah’s testimony regarding his injuries was undermined because Gutierrez and Alashmlami gave contradictory accounts, in that Gutierrez saw lacerations to Alhanah’s face that Alhanah did not mention, while Alashmlami described only a “little scratch on his neck and on his arm” (Defendant’s Brief at 46-47). However, that Alhanah did not testify that he sustained the “facial lacerations” Gutierrez noticed was of little moment since the injuries he did recall -65- suffering were sufficient to constitute physical injury. Thus, Alhanah may simply have not recalled that he had sustained facial cuts, which were relatively minor compared to his other injuries. The fact that Alashmlami noticed or remembered a minor cut to Alhanah’s neck, rather than the minor cuts to the face that Gutierrez saw was also of little significance. Alashmlami was only asked about the injuries he noticed “when [he] came out of [his] car to stop this fight” (Alashmlami: A245), a situation in which he could hardly be expected to observe and remember the specifics of Alhanah’s minimal visible injuries. Yet, even so, he recalled some kind of visible injury in the head or neck area.25 Moreover, Alashmlami’s testimony as to the precise location of the other injury he saw is unclear – he initially described it as being on Alhanah’s arm and pointed to his right elbow, then immediately afterwards said it was on Alhanah’s hand (Alashmlami: A245) – and cannot be said to contradict Gutierrez and Alhanah’s testimony about the visible injury to Alhanah’s hand. Nor, of course, is it surprising that neither Gutierrez nor Alashmlami said anything about seeing bruises on Alhanah’s body and legs, since such bruises, even assuming they had already started to emerge in the immediate aftermath of the attack, would have been covered by Alhanah’s clothing. 25 Alashmlami did not testify, as defendant now asserts, that Alhanah had “[n]othing at all” on his face and “no bruising to his body” (Defendant’s Brief at 47). Rather, when Alashmlami said, “Nothing at all,” he was answering a question about whether he had seen any injuries on defendant’s face or body (Alashmlami: A245-246). -66- Finally, defendant cites a number of cases in which courts have found insufficient evidence of substantial pain or impairment of physical condition (Defendant’s Brief at 44-48). These cases, however, do not aid defendant’s cause. Many of them pre-date Chiddick, and some clearly reflect a higher standard for physical injury than is required by this Court’s jurisprudence. See, e.g., Matter of Jose B., 47 A.D.3d 461, 461-62 (1st Dept. 2008) (victim was punched several times and experienced “pain in his arm and back for several days,” which “interfered with his performance of some household chores,” but without “any bruising, reduction in range of motion, or other indication of injury”); People v. Williams, 46 A.D.3d 1115 (3rd Dept. 2007) (defendant elbowed victim in cheek, causing “severe sharp pain” in cheek and “some swelling,” which lasted about two days and caused him to leave work early on day of assault, returning the following day); People v. Windbush, 163 A.D.2d 591 (2d Dept. 1990) (victim felt pain, his ribs “bothered him,” he could not lift his arm for four or five days after the incident, he did not miss school or obtain medical treatment, and his mouth was bleeding). In addition, in most of the cases cited by defendant, there was either no testimony about pain at all, or only generalized testimony about a small or unspecified degree of pain, with no indication that the action causing the injury or the nature of the injury is the type objectively likely to cause substantial pain. See People v. Jimenez, 55 N.Y.2d 895 (1982) (victim suffered only a one centimeter cut above lip); People v. Young, 99 A.D.3d 739 (2d Dept. 2012) (defendant knocked victim to -67- ground, causing her to suffer “generalized pain” and soreness in neck, arms, legs and feet, with no testimony regarding degree or duration of pain other than that it “intensified” when she returned to work a week later); Matter of Jonathan S., 55 A.D.3d 1324 (4th Dept. 2008) (victim sustained small cut under eye and puncture to lip, applied ice, bandages, and ointment as treatment, and did not testify that he suffered pain or scarring); People v. Sanders, 245 A.D.2d 471 (2d Dept. 1997) (victim did not testify, and only evidence of injury was that, after defendant cut victim’s hand with razor blade, witness saw him “bleeding and then cleaning his hand with peroxide”); People v. Brown, 187 A.D.2d 872 (3rd Dept. 1992) (victim felt pain from cut that bled but described his injuries as “[j]ust small cuts and abrasions”); People v. Rolando, 168 A.D.2d 578 (2d Dept. 1990) (victim’s bruised shoulder caused “some pain” and victim did not “amplify the nature and extent of the alleged immobility” of his arm; victim received “a couple of scratches on his hand” that did not cause any pain, and victim did not go to the hospital or otherwise seek medical treatment); People v. Brown, 145 A.D.2d 301 (1st Dept. 1988) (finding claim of pain “purely subjective” where victim struggled with defendant and “bumped her head”; although her body was sore for about three weeks and her head swollen, she did not see a doctor or go to the hospital); People v. Contreras, 108 A.D.2d 627, 628 (1st Dept. 1985) (victim suffered quarter-centimeter abrasion to arm when the defendant pushed her during robbery and, although she testified that she felt pain, it was “purely subjective” and “did not reach the objective level required to be considered -68- substantial”); People v. Balan. 25 Misc.3d 88, 89 (App. Term 1st Dept. 2009) (defendant slapped and kicked complainant, causing “unspecified level of pain,” as well as swelling and “redness” to face and legs for about a week). Here, by contrast, the pain that Alhanah described was fully consistent with the bruises he suffered and the manner in which he was assaulted. In sum, the trial evidence provided ample basis for the jury to determine that Alhanah suffered physical injury as the result of the robbery, and there is no basis for this Court to disturb that finding on appeal. -69- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: PATRICIA CURRAN Assistant District Attorney ALICE WISEMAN PATRICIA CURRAN Assistant District Attorneys Of Counsel December 22, 2015 -70-