| People v Davis |
| 2008 NY Slip Op 03877 [50 AD3d 1589] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ReginaldDavis, Appellant. |
—[*1] Reginald Davis, defendant-appellant pro se. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Upon appeal from a judgment convicting him, after a jury trial, of one counteach of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the seconddegree (§ 160.10 [1]), and two counts of robbery in the first degree (§ 160.15 [1],[2]), defendant contends that the evidence is legally insufficient to support the conviction. Wereject that contention. Based on the testimony of an eyewitness, we conclude that the evidence islegally sufficient to establish that he planned to rob the victim prior to the homicide, that heforcibly removed a jacket from the victim and that, in the course of or in furtherance of therobbery, he or another participant caused the death of the victim (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant's further contention, the verdictis not against the weight of the evidence (see generally id.). Defendant failed to preservefor our review his further contentions that County Court's Sandoval ruling constitutes anabuse of discretion (see People vAlston, 27 AD3d 1141, 1141-1142 [2006], lv denied 6 NY3d 892 [2006]), andthat the court erred in charging the jury on the element of intent to commit the murder (see generally People v Ponder, 19AD3d 1041, 1042-1043 [2005], lv denied 5 NY3d 809 [2005]), and we decline toexercise our power to review those contentions as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). There is no merit to the contention of defendant in his mainbrief and his pro se supplemental brief that defendant was denied effective assistance of counsel(see generally People v Baldi, 54 NY2d 137, 147 [1981]), nor is there merit to hiscontention that the pretrial photo array from which he was identified was unduly suggestive.Defendant's photo does not "stand[ ] out as markedly different from the others" in the photo array(People v Gee, 99 NY2d 158, 163 [2002], rearg denied 99 NY2d 652 [2003]),and the photos in the array are "sufficiently similar in appearance so that the viewer's attention isnot drawn to any one photograph in such a way as to indicate that the police were urging aparticular selection" (People vQuinones, 5 AD3d 1093, 1093 [2004], lv denied 3 NY3d 646 [2004]). [*2]The sentence is not unduly harsh or severe. Finally, the remainingcontention of defendant in his pro se supplemental brief, that the court erred in constructivelyamending the indictment, is unpreserved for review (see People v Yakubova, 11 AD3d 644, 645 [2004], lv denied4 NY3d 769 [2005]), and in any event is without merit (see id.).Present—Hurlbutt, J.P., Martoche, Peradotto, Pine and Gorski, JJ.