| People v Drayton |
| 2020 NY Slip Op 02824 [183 AD3d 1008] |
| May 14, 2020 |
| Appellate Division, Third Department |
[*1](May 14, 2020)
| The People of the State of New York,Respondent, v Richard Drayton, Appellant. |
Cliff Gordon, Monticello, for appellant, and appellant pro se.
Meagan K. Galligan, Acting District Attorney, Monticello, for respondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Schick, J.), renderedFebruary 7, 2017 in Sullivan County, upon a verdict convicting defendant of the crimesof robbery in the second degree and conspiracy in the fourth degree.
In January 2016, defendant was indicted for two counts of robbery in the seconddegree, two counts of conspiracy in the fourth degree and one count of resisting arrest,stemming from the armed robbery of a confidential informant (hereinafter the victim)during a police-monitored controlled purchase of heroin and guns in the Village ofMonticello, Sullivan County. The indictment charged defendant as having acted inconcert with four other codefendants in a scheme to rob the victim. Defendant's case wassubsequently severed from that of his codefendants and, following a jury trial, he wasconvicted of one count of robbery in the second degree and one count of conspiracy inthe fourth degree.[FN1] Supreme Court denied defendant'ssubsequent motions seeking to set aside the verdict and for a new trial. He was thereaftersentenced, as a second felony offender, to a prison term of 12 years, to be followed byfive years of postrelease supervision, on the robbery count, to run concurrently with aprison term of 2 to 4 years on the conspiracy count. Defendant appeals.
Defendant contends that there was legally insufficient evidence to support hisconviction for conspiracy in the fourth degree and that the verdict was against the weightof the evidence. Initially, inasmuch as defendant failed to renew his motion to dismiss forlack of legally sufficient evidence following the close of his proof, his legal sufficiencyclaim is unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Trappler, 173 AD3d1334, 1334-1335 [2019], lv denied 34 NY3d 985 [2019]). However, thisCourt's weight of the evidence review necessarily includes an evaluation of whether allthe elements of the charged crimes were proven beyond a reasonable doubt (see People v Danielson, 9NY3d 342, 348-349 [2007]). When conducting a weight of the evidence review, "ifa different result would not have been unreasonable, this Court must weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supported"(People v Turner, 178AD3d 70, 73 [2019] [internal quotation marks and citation omitted]; see Peoplev Bleakley, 69 NY2d 490, 495 [1987]).
As relevant here, to be found guilty of robbery in the second degree, the People wererequired to prove that defendant forcibly stole property and, "[i]n the course of thecommission of the crime or of immediate flight therefrom, he or another participant inthe crime . . . [d]isplay[ed] what appear[ed] to be a pistol, revolver. . . or other firearm" (Penal Law § 160.10 [2] [b]). To befound guilty of conspiracy in the fourth degree, the People were required to prove thatdefendant intended to engage in conduct constituting a class B or C felony and that, "he. . . agree[d] with one or more persons to engage in or cause theperformance of such conduct" (Penal Law § 105.10 [1]).
The evidence at trial established that, on January 7, 2016, Rashad Kearse, DonovanPrice and defendant's brother, Frank Drayton, met at Drayton's hotel room where theywere shown two guns that Drayton had for sale.[FN2] Kearse and Price thereafter left thehotel room and met with codefendant Matthew Miller and told him about the guns. Inturn, Miller contacted the victim, whom he had regularly sold heroin to in the past andwho he knew was also looking to purchase guns. Unbeknown to Miller, however, thevictim was a confidential informant for the Hudson Valley Safe Streets Task Force and,following a series of text messages, the victim arranged to meet Miller at an apartmentcomplex that evening to conduct a controlled purchase of heroin and twoguns.[FN3]
Prior to meeting with the victim, Miller, Kearse, Drayton, Price and defendant met atMiller's apartment and discussed the pending sale of the heroin and guns to the victim.According to Kearse, following this discussion, all five left Miller's apartment with theunderstanding "that a robbery was most likely going to take place" and that they wouldthereafter meet back at the apartment and split the proceeds thereof. Defendant left theapartment wearing a purple Phoenix Suns jacket. The police, meanwhile, searched thevictim for contraband, equipped him with an audio/video recording device, provided himwith $860 in prerecorded buy money and dropped him off at a prearranged locationwithin the apartment complex to consummate the purchase. Upon arrival, the victim metMiller and Price, whereupon Miller handed the victim a quantity of heroin and showedhim a case that contained a pistol. The victim, Miller and Price then walked toward awooded area at the rear of the complex where they were then accosted by two males withguns, one wearing a black jacket, who was later identified as Drayton, and one wearing apurple jacket. Drayton emptied the victim's pockets, taking the prerecorded buy money,heroin and the victim's cell phone, while the individual in the purple jacket kept his gunpointed at the victim's head and torso. When the victim subsequently pleaded to get hiscell phone back, Drayton fired a shot in the victim's direction. The victim fled unharmedand, as he did so, he observed a light-colored minivan pass by as the individual in thepurple jacket—whom the victim had not previously met—ran up to him andreturned his cell phone. The police, having heard the gunshot, extracted the victim fromthe apartment complex and debriefed him nearby. The codefendants briefly regrouped atMiller's apartment, portions of the robbery proceeds were divvied up and they then leftthe apartment complex in a light-colored minivan. After exiting the complex, the victimobserved the minivan pass by and, following a brief police chase, the van came to a stopand three individuals exited the vehicle and fled on foot, including the individual in thepurple jacket.[FN4]
Although the individual in the purple jacket was not apprehended that evening,during a subsequent search of the area where he fled, police discovered a purple jacket, asock, a blue pair of sweatpants containing defendant's driver's license and a magazinewith blank rounds of ammunition. A search of the minivan also revealed a walletcontaining defendant's Social Security card. Subsequent testing established thatdefendant was the major DNA contributor to the purple jacket, sock, sweatpants andmagazine. Upon listening to the audio/video recording of the robbery, a detective on thetask force who had prior dealings with defendant identified him as the voice on therecording. Kearse testified that defendant participated in the planning and execution ofthe robbery and that defendant was wearing a purple jacket, and the victim testified thathe was held at gunpoint and robbed by Drayton and the individual in the purplejacket.
Although a different verdict would not have been unreasonable, viewing theforegoing evidence in a neutral light, we find that defendant's convictions are not againstthe weight of the evidence. The evidence identifying defendant as the individual in thepurple jacket was overwhelming and, contrary to defendant's assertion, the fact that hesubsequently returned the victim's cell phone within minutes after it was initially stolendid not serve to negate his intent to hold the victim at gunpoint and forcibly steal hismoney and heroin (see People vLamont, 25 NY3d 315, 319 [2015]; People v Deleon, 149 AD3d 1273, 1274 [2017], lvdenied 29 NY3d 1077 [2017]; People v Ramos, 12 AD3d 316, 316 [2004], lvdenied 4 NY3d 767 [2005]). To the extent that defendant claims that the testimonyof the victim and Kearse was not credible, these issues were fully explored before thejury on both direct and cross-examination and ultimately posed a credibilitydetermination for the jury to resolve (see People v Criss, 151 AD3d 1275, 1279 [2017], lvdenied 30 NY3d 979 [2017]). Further, ample evidence was presented from which thejury could find that, prior to the robbery, defendant knowingly entered into an agreement,either express or implied, with his codefendants to rob the victim and thereafter executedsaid plan when he and Drayton held the victim at gunpoint and stole his property,supporting his convictions for robbery in the second degree and conspiracy in the fourthdegree (see People v Leduc,140 AD3d 1305, 1307 [2016], lv denied 28 NY3d 932 [2016]; People vBrown, 249 AD2d 835, 836 [1998]; People v Givens, 181 AD2d 1031,1031-1032 [1992], lv denied 79 NY2d 1049 [1992]; see also People v Wilson, 173AD3d 1853, 1854 [2019]).
Defendant's contention that he was deprived of a fair trial as a result of prosecutorialmisconduct based on comments that the prosecutor made during the direct examinationof the victim and summation was not preserved for appellate review, as he failed torender contemporaneous objections to these comments during the trial (see People vJohnson, 183 AD3d 77, 81-82 [2020]; People v Wynn, 149 AD3d1252, 1255-1256 [2017], lv denied 29 NY3d 1136 [2017]). Nor are wepersuaded that defense counsel's failure to timely object to these comments constitutedineffective assistance of counsel (see People v Fragassi, 178 AD3d 1153, 1156-1157 [2019],lv denied 34 NY3d 1128 [2020]; People v Pitt, 170 AD3d 1282, 1286 [2019], lvdenied 33 NY3d 1072 [2019]). We are similarly unpersuaded by defendant'scontention that defense counsel's cross-examination of Kearse and the victimdemonstrated that he received ineffective assistance of counsel. Defense counselextensively cross-examined the victim and Kearse, attacked their credibility, noted theircriminal histories and respective cooperation agreements with the People, noted thevictim's heroin addiction and challenged the victim's identification of defendant as one ofthe perpetrators. Defense counsel also challenged Kearse's version of events oncross-examination and established that Kearse gave inconsistent statements during hisgrand jury testimony in order to minimize his conduct. Accordingly, reviewing thetotality of defense counsel's representation, we are satisfied that defendant was providedwith meaningful representation (see People v Wragg, 26 NY3d 403, 412 [2015]; People v Thorpe, 141 AD3d927, 935 [2016], lv denied 28 NY3d 1031 [2016]).
The remaining arguments raised in defendant's supplemental pro se brief do notrequire extended discussion. Defendant's jurisdictional challenge to the underlying felonycomplaints was rendered academic, as these complaints were subsequently superseded bya valid indictment (see People vThacker, 173 AD3d 1360, 1362 [2019], lv denied 34 NY3d 938 [2019]).Contrary to defendant's assertion, Kearse's cooperation agreement with the People wasextensively discussed at trial and defense counsel was able to thoroughly cross-examinehim with regard thereto, rendering meritless his claim that the People failed to disclosesuch an agreement pursuant to Brady v Maryland (373 US 83 [1963]). Finally, tothe extent that defendant claims that his arrest was unlawful, he failed to preserve thisissue for review by making an appropriate motion before Supreme Court (seeCPL 470.05 [2]; People vCollier, 146 AD3d 1146, 1147 [2017], lv denied 30 NY3d 948 [2017]).To the extent not specifically addressed, defendant's remaining claims have beenreviewed and found to be without merit.
Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:Supreme Courtdismissed the resisting arrest count prior to submission of the case to the jury.
Footnote 2:The two guns werestarter pistols, not operational firearms.
Footnote 3:The victim alsoparticipated in a controlled purchase of heroin from Miller at the same location the daybefore, January 6, 2016.
Footnote 4:Miller and Kearseremained in the vehicle and were taken into custody and, after a brief foot pursuit,Drayton was also taken into custody. Price was arrested the next day following theexecution of a search warrant, and defendant was arrested following a traffic stop onJanuary 20, 2016.