People v Marques (Wesley)

[*1] People v Marques (Wesley) 2018 NY Slip Op 50487(U) Decided on April 6, 2018 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 6, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-820 Q CR

The People of the State of New York, Respondent,

against

Wesley Marques, Appellant.

Appellate Advocates (Laura B. Tatelman of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott and Deborah E. Wassel of counsel), for respondent.

Appeal from three judgments of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered February 23, 2015. The judgments convicted defendant, upon jury verdicts, of endangering the welfare of a child, attempted assault in the third degree, and harassment in the second degree, respectively.

ORDERED that the judgments of conviction are reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instruments are dismissed.

Defendant, a teacher and baseball coach at a parochial high school in Queens, was involved in an incident with the complainant both inside and outside the school van that defendant had been driving. In an accusatory instrument dated May 7, 2013, defendant was charged with assault in the third degree (Penal Law § 120.00 [1]), endangering the welfare of a child (Penal Law § 260.10 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). On May 16, 2014, the accusatory instrument was replaced by three prosecutor's informations, charging defendant with endangering the welfare of a child (Penal Law § 260.10 [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), and harassment in the second degree (Penal Law § 240.26 [1]), respectively.

At a jury trial, the complainant testified that, on April 16, 2013, he was 16 years old, and the captain of his school's baseball team. Defendant was one of his coaches. The complainant had a substantial disciplinary record, including many demerits and a suspension. After a baseball practice on Randall's Island, defendant drove the team back to the school in a school van. The van had a driver's seat, a front passenger seat, and four rows of seats in the back. The complainant sat directly behind defendant. There were about 12 students in the van.

The complainant further testified that shortly before defendant pulled the van into the garage, the complainant shook defendant's seat for about 30 seconds. He asserted that he did that all the time as a joke. He did not think shaking the driver's seat was dangerous. Defendant then stopped the van, turned around, and punched the complainant in his chest, knocking the wind out of him. The complainant "still thought it was a joking matter, just a little more rough than usual." Defendant grabbed the complainant, dragged him over the driver's seat, and threw him out of the driver's door of the van. Defendant exited the van. The complainant, while laughing, jumped on defendant's back. When the complainant tried to slide off defendant's back, defendant grabbed both of the complainant's arms and pulled him up. Defendant "swung" the complainant's knee into the van. At that point, the complainant realized that defendant wasn't joking and told him to stop. Defendant then grabbed the back of the complainant's pants and the back collar of his "hoodie," and slammed his forehead twice into the side of the van. Defendant then lifted the complainant up at about chest level and slammed his back onto the ground three times. The lower half of the complainant's body was under the van.

Portions of the incident were recorded by security cameras. A DVD of the video was admitted into evidence and played for the jury. The complainant explained that the video did not capture defendant picking him up at "chest level and slamming [him] against the floor." The complainant sustained a bump and a cut on his forehead and a cut on his back. He did not go to the hospital because he did not think he needed to.

Given the angle of the camera, the video does not show what occurred inside the van and shows only some of what occurred outside the van. The video shows the van arriving in the school's garage and stopping. It shows the driver's side door opening, after which someone is thrown out of the driver's side of the van. Thereafter, someone jumps on someone else's back. The person who jumped on the other person is subsequently thrown into the side of the van by the other person. The remainder of the video appears to show shadows of a person, but it does not clearly show whether someone is on the ground.

One of the complainant's teammates testified that he sat in the second row of the van, behind the complainant. The teammate essentially corroborated the complainant's testimony, adding that defendant had mumbled, "you want some more" in a threatening way. The teammate admitted that he had provided a written statement to the school that did not mention defendant punching the complainant.

Carolyn Marko testified that she has been the school's principal since 1990. Defendant [*2]was hired by the school as a teacher in October 2011. He was provided with a staff handbook, was given one week to read it, and signed a statement that he had read it and agreed with it. The handbook contained the school's policy for disciplining students. Any kind "of offensive or abusive language or conduct towards a student, a staff member [or a] parent" would result in "instant termination." Teachers were not permitted to strike students or use corporal punishment.

The prosecutor asked Marko whether defendant had previously violated school policies or been disciplined. The court sustained objections to these questions, and during a sidebar, admonished the prosecutor for asking "totally inappropriate" questions. Defendant's motion for a mistrial was denied. Over defense objection, the court permitted Marko to testify that, after she had investigated this incident and spoken to several people, including the complainant, one of his teammates, and the police, she had terminated defendant.

After the People rested, another member of the baseball team testified on defendant's behalf that defendant "is my friend now." During the ride back to the school from baseball practice on April 16, 2013, the teammate sat in the third row of the van. The complainant was sitting directly behind defendant, "punching, rocking and pushing" defendant's chair during the entire ride. Defendant asked the complainant to stop, but he did not listen. After defendant parked the van, the complainant grabbed defendant's right arm below the elbow. Defendant got out of the van. The complainant jumped on defendant's back and placed his arms tightly around defendant's neck. Defendant shook the complainant off. The complainant was laughing and "thought it was a joke." The complainant jumped on defendant's back a second time. Defendant got the complainant off his back. The teammate did not observe defendant punch the complainant, or see him "reach back and grab the complainant by his hoodie or the back of his pants" and "drag him out of the van." He did not see defendant "pick up [the complainant] chest high" and "slam him down to the ground on three different occasions back to back." Nor did defendant "slam [the complainant] into the van."

Defendant's motion to dismiss after the close of all of the evidence was denied.

In her summation, the prosecutor told the jury, among other things, "[l]adies and gentlemen, we are a nation of laws. Everyone of us must follow those laws. You know what, if you have an issue with somebody you walk away. You even tell them to go away." Counsel's objection to these comments was sustained. The prosecutor then stated:

"You can't punch them, you can't slap them, you can't bash their head into a van or smash their body into a concrete floor. The law doesn't allow that. That's part of being an assault.You know what else the law doesn't allow, doing that to a child. That's also part of being an adult. Whether or not that child annoys you is irrelevant. It doesn't then give you the right to assault them. When a child tells you to stop, you stop. That is what we call being the adult in the room."
Counsel's objection to those comments was overruled.

With respect to the testimony of the school's principal, the prosecutor argued:

"Ms. Marko told you that teachers are not allowed to strike students and that the Defendant knew that. He even signed a document acknowledging that he knew that. Ms. Marko determined that this Defendant acted outside the rules of the school - -[Defense Counsel]: Objection.THE COURT: Sustained.[Prosecutor]: She fired him after this incident. This was something she didn't take lightly.[Defense Counsel]: Objection.THE COURT: No, I will allow that.* * *[Prosecutor]: After the investigation was finished, after she spoke to [the complainant], another student, the Dean, police, after reviewing all of the evidence, it was clear to her that the Defendant attacked [the complainant].[Defense Counsel]: Objection.THE COURT: Sustained.[Prosecutor]: She terminated him immediately. You may ask yourself, isn't it enough punishment, losing his job. Ladies and gentlemen, would any parent be satisfied with that?[Defense Counsel]: Objection.THE COURT: Overruled, again it's argument. It's not evidence what she is saying."
Finally, the prosecutor argued that: "We are here today because of the Defendant's choices. Remember that sacred trust I talked about when I first met with you? The defendant broke that sacred trust on April 16, 2013. Remember what we talked about in jury selection, we expect coaches and teachers to protect our children. It's not what happened here. We have proven that is not what happened here beyond a reasonable doubt."
After the charge, defendant moved for a mistrial based on the prosecutor's summation, on the ground that the argument that defendant did not "follow the rules" and that the principal, Carolyn Marko, had "determined that there was an attack usurps the jury's function." Moreover, [*3]the prosecutor's argument regarding what a parent would expect "calls for sympathy" for the complainant. The court indicated that it had sustained objections to those comments, and denied the motion.

The jury found defendant guilty as charged.

Defendant's motion to set aside the verdict, pursuant to CPL 330.30, was denied.

Before the court imposed sentence, it indicated, among other things, that it found this case to be "troubling," but that it believed that the People had made out their case. The court sentenced defendant to concurrent conditional discharges and directed him to attend a 12-week anger management program.

On appeal, defendant contends that his guilt was not established beyond a reasonable doubt and that the verdicts of guilt were against the weight of the evidence. Defendant also claims that it was improper for the principal to testify that she had terminated defendant after speaking with, among others, the complainant and the police. Finally, defendant claims that he was denied a fair trial based on, among other things, inflammatory comments and arguments by the prosecutor during summation.

At the outset, we note that as defendant made only a general motion to dismiss on the ground that the People had failed to make out a prima facie case, and raised only the specific issue of geographical jurisdiction, which is not raised on appeal, his legal sufficiency claim is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that, based on the complainant's testimony, the testimony of one of his teammates, and the video, the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt. While the video did not capture the entire incident, it tends to corroborate the prosecution's version of the incident. The fact that the complainant may have avoided physical injury "does not preclude a finding that . . . [defendant] attempted to inflict such injury" (Matter of Eric C., 281 AD2d 543, 544 [2001]).

In conducting an independent review of the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]), great deference is accorded to the jury's opportunity to view the witnesses, hear their testimony, and observe their demeanor. The reviewing court must determine, based on the credible evidence, whether a different result would have been unreasonable (see People v Lane, 7 NY3d 888, 890 [2006]; People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, we find that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

However, the prosecutor's comments in her summation were inflammatory and tended to [*4]prejudice the jury against defendant. The cumulative effect of those comments, and the testimony of the school principal, warrant reversal of the judgments of conviction (People v Redd, 141 AD3d 546, 548 [2016]). The consistent theme of the prosecutor was to garner sympathy for the victim and to appeal to the jurors, at least some of whom were parents, by arguing that defendant had violated a "sacred trust," and that a school should be a safe place. The prosecutor also emphasized that the principal had determined that defendant had acted outside of the rules of the school and that, as a result, defendant had been terminated. The testimony of the school principal, that she terminated defendant after speaking to others, including an unidentified police officer or officers, constituted hearsay and could have left the jury to infer that the nontestifying officer or officers "possessed information which could implicate" defendant (People v Brody, 82 AD3d 784, 785 [2011]; cf. People v Tucker, 54 AD3d 1065, 1066 [2008]). The prosecutor's comments, together with the principal's testimony "substantially prejudiced defendant's rights" (People v Calabria, 94 NY2d 519, 523 [2000]). Furthermore, although the evidence supported the jury's verdict of guilt, it was not overwhelming. Thus, the errors were not harmless (see People v Benitez, 120 AD3d 705, 707 [2014]; People v Anderson, 35 AD3d 871, 872 [2006]; cf. People v Viruet, 29 NY3d 527 [2017]).

As defendant has completed his sentence, we dismiss the accusatory instruments as a matter of discretion in the interest of justice, rather than remitting the matter for a new trial (see People v Flynn, 79 NY2d 879 [1992]; People v Burwell, 53 NY2d 849 [1981]; People v Brodeur, 55 Misc 3d 37, 41 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; People v Hunter, 52 Misc 3d 141[A], 2016 NY Slip Op 51194[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the judgments of conviction are reversed and the accusatory instruments are dismissed.

WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018