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1
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OPINION
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EXTRACTED KEY WORDS
INCIDENT APPELLANT MEMORANDUM DEFENDANT DELI JUDGE CRIME DISCRETION RESPONDENT YORK APPELLATE DIVISION CONVICTIONS PROSECUTION PRIOR GUN VICTIMS ACCOMPLICE EVIDENCE SPECULATION IMPOSING SHOOTING INCIDENT NY2D EXPLANATION HARD WORKING KOREAN WORKING KOREAN IMMIGRANT ASSASSINATION TESTIFY HOLDING UNCHARGED CRIME |
PEOPLE, & C., RESPONDENT, v. LUIS NARANJO , APPELLANT.
89 N.Y.2d 1047, 681 N.E.2d 1272, 659 N.Y.S.2d 826 (1997).
May 1, 1997
1 No. 63 (1997 NY Int. 61)
Decided May 1, 1997
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Pamela Peters, for Appellant.
Mary C. Farrington, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be modified by vacating the
sentence and remitting the case to Supreme Court for resentencing
before the same court and, as so modified, affirmed.
Defendant was convicted of two counts of attempted assault in the
second degree, five counts of robbery in the first degree and criminal
possession of a weapon in the second degree.
At sentencing, the court offered both the prosecution and the
defendant an opportunity to speak "on the issue of what the sentence
should be." During its oral submission, the People noted that, just
prior to defendant's trial, "a car pulled up to the *** deli some time
after midnight and a masked gunman walked into the deli and pointed
and fired a gun several times into the chest of an employee who was
standing behind that counter and left." The prosecutor observed that
this incident and the incident leading to one of defendant's
convictions both occurred at the same deli; the victims in each bore a
"striking resemblance;" and the masked attacker was described as a
black male -- the same as defendant's unapprehended accomplice.
Despite the prosecutor's suspicions, he conceded that he could not
prove "that those bullets were meant for (someone who) was one of the
identifying witnesses in this case" or that "the masked gun man was
likely the defendant's accomplice." Defense counsel objected to
consideration of this incident.
The trial judge stated that he had heard of, but not seen, the
videotape evidence of the crime. However, the court accepted the
prosecutor's speculation that there was no "explanation why the hard
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