People v. Pedraza

Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered June 13, 2002, convicting defendant, after a jury trial, of kidnapping in the first degree, arson in the second degree and attempted murder in the second degree, and sentencing her to a term of 23 years to life, to be served consecutively to two concurrent 10-year terms, modified, as a matter of discretion in the interest of justice, to direct that the sentence for kidnapping be served concurrently with the sentences imposed for arson and attempted murder, and otherwise affirmed. The court properly permitted the People to call a witness whose name was omitted from their list of prospective witnesses (see People v Williams, 243 AD2d 833, 837 [1997], lv denied 91 NY2d 926 [1998]). The record does not support defendant’s assertion that, in formulating her trial strategy, she relied to her detriment on her expectation that the People would not call this witness. On the contrary, we conclude that there was no [395] substantial prejudice to defendant, particularly since the court accorded defendant ample time to prepare for cross-examination of the unexpected witness, and since defendant vigorously and extensively cross-examined the witness and exploited all the relevant circumstances to her advantage (see People v McCorkle, 272 AD2d 273, 275 [2000], lv denied 95 NY2d 936 [2000]). With regard to sentencing, we believe that the aggregate sentence should be reduced by making all three sentences run concurrently, resulting in an aggregate term of 23 years to life. The dissent’s preference to reduce the kidnapping sentence to 15 years to life—the minimum sentence for kidnapping in the first degree, a class A-I felony—is, on this record, unrealistic. We emphatically reject the dissent’s characterization of defendant’s crime as simply “the end product of a domestic dispute that escalated into intra-family conflict and ... is also unlikely to recur.” We also observe that the bland language the dissent uses to characterize the subject kidnapping—“in an attempt to locate [defendant’s ex-husband], defendant’s stepfather and two other men kidnapped [the ex-husband’s] sister”— ignores the shocking reality of the events leading to the commission of this class A-I felony. In fact, what occurred was that the victim, the innocent sister of defendant’s ex-husband, was kidnapped while on the way to work, threatened with a gun, beaten, bound, gagged and blindfolded, deprived of food and water, and finally left to die tied to a chair in a burning building, a particularly horrifying death from which the victim only escaped due to a combination of pure chance and her own extraordinary courage. We find inexplicable, and without support in this writing, the dissent’s apparent interpretation of the foregoing factual description as an attempt, on our part, to characterize “defendant as a hardcore, violent criminal with a propensity to repeat violent criminal acts.” What we are characterizing is not defendant’s overall personality, but the criminal acts of which she has been found guilty, and those acts were undeniably violent and cruel. Nor is there any factual support for the dissent’s argument that defendant played no greater role in the commission of this crime than her codefendants, an argument that ignores the fact that defendant was the only one with a motive. Thus, it is fairly inferable that codefendants were mere instruments used to carry out defendant’s scheme to get back at her ex-husband. The dissent also appears to be conflicted in seemingly arguing for dismissal of the indictment, at the very least as to the arson and attempted murder charges, and classifies the victim’s testimony as “false in material aspects,” a conclusion that was [396] evidently not shared by the trier of fact. Defendant, in fact, does not even raise a legal sufficiency claim as to any of the convictions. Moreover, defendant, on appeal, does not challenge the victim’s identification of her as being present in the apartment, yet the dissent inexplicably attempts to bootstrap this identification onto the victim’s testimony that she heard defendant’s voice one-half hour before the fire was started, which was not possible as defendant was in police custody at that time. The victim’s confusion on this point is certainly understandable, considering the ordeal to which she had been subjected, and this point was brought up before the jury and, presumably, was considered and rejected by them. Finally, in calling for a reduction of the sentence for kidnapping to 15 years, the dissent opines that there is “substantial doubt cast by the record upon defendant’s direct participation” in this crime. The dissent, however, points to nothing in the record that casts doubt on defendant’s participation in the kidnapping. Moreover, while the dissent refers to the “obviously incredible testimony” given by the victim and calls it “the only evidence to suggest that defendant personally participated in, or had any prior knowledge of, the arson and attempted murder,” this ignores the fact that defendant was prosecuted under an acting in concert theory, i.e., that she “solicit[ed], requested], commands, importune[d], or intentionally aid[ed]” such person to engage in such conduct. Concur—Andrias, Friedman, Sullivan and Nardelli, JJ.