| People v Pagan |
| 2013 NY Slip Op 01105 [103 AD3d 978] |
| February 21, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vFrederick Pagan, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda,J.), rendered May 5, 2010, upon a verdict convicting defendant of the crimes of robberyin the second degree (two counts) and criminal possession of a weapon in the seconddegree.
On April 26, 2009, a taxicab driver was assaulted and robbed by a group ofindividuals outside an apartment complex in the hamlet of Livingston Manor, SullivanCounty. Defendant and codefendants Donald Blume[FN1]and Lynn Thomas were charged by indictment with two counts of robbery in the seconddegree and one count of criminal possession of a weapon in the second degree. Thomaswas permitted to plead guilty to attempted robbery in the second degree with a two-yearterm of incarceration in exchange for her testimony on behalf of the People at the jointtrial of defendant and Blume—with two juries. Defendant was thereafter convictedas charged and was later sentenced to concurrent prison terms of 15 years and five yearsof postrelease [*2]supervision on both robbery countsand a consecutive prison term of 15 years and five years of postrelease supervision on thepossession count. Defendant appeals.
We now affirm. Defendant asserts that County Court violated CPL 710.60 by failingto set forth on the record its findings of fact and conclusions of law following varioussuppression hearings (see CPL 710.60 [6]; People v Mabeus, 47 AD3d 1073, 1074 [2008]). The courtconducted Wade, Huntley and Mapp hearings prior to trial and,contrary to defendant's contentions, ultimately made sufficient findings in eachproceeding regarding the credibility of the witnesses and the facts relevant to each issue,setting forth appropriate reasoning and legal conclusions regarding the admissibility ofthe evidence. Defendant relies on the fact that the court, after concluding that the policeprocedure was fair and that the identification evidence was admissible in theWade hearing, nevertheless invited the parties to submit legal argument on theadmissibility of the evidence, suggesting that it was open to reconsidering itsdeterminations. However, nothing in the record suggests that the court's findings andconclusions were subsequently changed or undermined. Under these circumstances, wediscern no statutory violation nor any reason to upset the court's suppression rulings.
Defendant also argues that the People committed a Brady violation whenthey secured certain video surveillance tapes from a gas station at which defendant andhis companions stopped following the robbery, while allowing the gas station owner, inthe course of his regular practice, to tape over other footage taken that evening. Aspoliation hearing was held during the trial, at which testimony established that onlycertain footage was secured by police because the other cameras did not capture anyidentifiable license plates, occupants or other identifying features of the vehicles movingthrough the station. County Court declined to impose a sanction or to give an adverseinference charge to the jury; however, it permitted defense counsel to comment on theabsence of the video during her summation. As the videos at issue were not in thepossession of the People and their exculpatory value was speculative, at best, we find noBrady violation (see People v Scott, 309 AD2d 573, 574 [2003], lvdenied 2 NY3d 806 [2004]; see also People v Bianca, 91 AD3d 1127, 1130 [2012],lv denied 19 NY3d 862 [2012]; People v Smith, 89 AD3d 1148, 1150 [2011], lvdenied 19 NY3d 968 [2012]).
Next, we reject defendant's argument that the verdict was against the weight of theevidence. The People were required to prove that defendant, (1) acting in concert withBlume and Thomas, forcibly stole property while aided by another person actuallypresent (see Penal Law § 160.10 [1]), (2) that, "[i]n the course of thecommission of the crime or of immediate flight therefrom, he or another participant. . . [c]ause[d] physical injury to any person who [was] not a participant inthe crime" (Penal Law § 160.10 [2] [a]), and (3) that the assailants possessed aloaded and operable firearm (see Penal Law § 265.03 [3]; People vLongshore, 86 NY2d 851, 852 [1995]). According to the trial testimony, Thomasarranged to have the victim cab driver pick her up, at which point she, together withdefendant, Blume, Ryan Ward, Toni DiLauro and Angelo Rivera, planned to rob him toprocure money to buy drugs. When the victim arrived, Thomas and defendant entered thebackseat of the cab. Moments later, Blume and Ward approached and began to attack thevictim from the driver's side door and the passenger side door, respectively, whiledefendant joined in from the back seat. The victim pulled out a loaded firearm and triedto shoot Blume, but Blume wrestled the gun away from him, dragged him out of thevehicle, and Blume, defendant and Ward continued to hit the victim. Then, they wentthrough his pockets and left in Rivera's car with the victim's wallet, cash and firearm.Following the attack, the victim was treated at a hospital, where he received severalstaples for a laceration in the back of his head and treatment for swelling and soft tissuedamage to his chest.[*3]
Because a different verdict would not have beenunreasonable, we have weighed the "relative probative force of conflicting testimony andthe relative strength of conflicting inferences that may be drawn from the testimony" anddetermined that the verdict was not against the weight of the credible evidence(People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks andcitation omitted]; see People vKruppenbacher, 81 AD3d 1169, 1174 [2011], lv denied 17 NY3d 797[2011]). Defendant's assertion that the People's case relied on accomplice testimony thatwas insufficiently corroborated by independent evidence is belied by the record(see CPL 60.22 [1]; People v Steinberg, 79 NY2d 673, 683 [1992]; People v Lumnah, 81 AD3d1175, 1176 [2011], lv denied 16 NY3d 897 [2011]). Although the People'sproof included testimony by Thomas, DiLauro and Rivera,[FN2]that testimony was fully corroborated by the victim's testimony, who described being setup by Thomas and the resultant attack and robbery by three men, including defendant.The victim also testified that the gun taken from him was his Smith and Wesson .357Magnum revolver, which was loaded and operable, as he had fired it a few weeks prior tothe incident. Indeed, the victim's testimony alone was sufficient to corroborate theaccomplice testimony offered at trial. However, additional corroborative evidence wasintroduced. Specifically, the gas station video footage depicting Blume corroboratedThomas's and DiLauro's testimony that the group stopped for gas following the attack. Apolice officer also testified that, shortly after the robbery, Ward was the subject of atraffic stop while driving Rivera's car and a .38 caliber bullet was found on the floor ofthe vehicle, corroborating DiLauro's testimony that, following the robbery and whileinside the car, Blume bent down between his legs and removed the bullets from thevictim's gun. In addition, the victim's cellular telephone records showed that he receivedcalls from Thomas on the night of the robbery. Finally, a recorded, controlled telephoneconversation between DiLauro and defendant, which took place the day after therobbery, was introduced and revealed DiLauro and defendant discussing how to get intouch with Blume because DiLauro had a prospective buyer for the gun. Taken as awhole, more than sufficient evidence was introduced to corroborate the accomplicetestimony adduced at trial (see People v Bretti, 68 NY2d 929, 930 [1986]; People v Pagan, 97 AD3d963, 965 [2012], lv denied 20 NY3d 934 [2012]; People v Oathout, 90 AD3d1418, 1420-1421 [2011], lv denied 19 NY3d 866 [2012]).
Defendant's remaining contentions do not require extended discussion. He did notobject to the introduction of the photograph of Blume's hands showing injuries allegedlysustained during the robbery (see People v Wright, 38 AD3d 1004, 1006 [2007], lvdenied 9 NY3d 853 [2007]). While the People deny any intentional noncompliancewith County Court's discovery directives, defendant in any event failed to demonstrateany prejudice resulting from the claimed noncompliance and, as a result, we discern noabuse of discretion by the court in failing to impose sanctions and/or preclude relatedevidence (see CPL 240.70 [1]; People v Sullivan, 261 AD2d 652, 653[1999]). Although we agree that, in closing, the prosecutor bordered on making animproper "safe streets" argument by suggesting that the community needs to be protectedfrom violent crime such as that perpetrated by defendant (see People v Brown, 17 NY3d742, 743 [2011]), we find that County Court's appropriate response to defensecounsel's objections ameliorated any prejudice to defendant (see People v White,173 AD2d 897, 898[*4][1991], lv denied 78NY2d 976 [1991]). Defendant's assertion that he was deprived of a fair trial due toexcessive participation by County Court is not preserved for appellate review and, in anyevent, a review of the record reveals no bias, but rather the court's permissible efforts tofacilitate the progress of the trial (see People v Lupo, 92 AD3d 1136, 1138 [2012]). We alsoreject defendant's assertion that he was entitled to concurrent sentences (seePenal Law § 70.25 [2]). Inasmuch as the robbery was complete when defendantleft the parking lot of the apartment complex, the possession of the firearm was aseparate and distinct act occurring thereafter and, thus, can support a consecutivesentence (see People v Salcedo, 92 NY2d 1019, 1022 [1998]; People v Brennan, 62 AD3d1167, 1169 [2009], lv denied 13 NY3d 794 [2009]).
We have considered defendant's remaining contentions, including those raised in hispro se brief, and find them to be unpersuasive.
Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: We have previously hadoccasion to consider the conduct underlying defendant's convictions in the context ofBlume's appeal from his convictions stemming from the same incident (see People v Blume, 92 AD3d1025 [2012], lv denied 19 NY3d 957 [2012]).
Footnote 2: County Court instructedthe jury that Thomas, as a codefendant, was an accomplice as a matter of law (seeCPL 60.22 [2]; People vCaban, 5 NY3d 143, 153 [2005]), while the accomplice status of DiLauro andRivera was a question of fact for the jury to resolve.