| People v Sims |
| 2008 NY Slip Op 09666 [57 AD3d 1106] |
| December 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dewey Sims,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), renderedMarch 30, 2007, upon a verdict convicting defendant of two counts of the crime of robbery in thesecond degree.
Defendant was convicted, following a jury trial, for participating in an August 20, 2006 armedrobbery of Joshua Bell and Allen H. Everett who were in a car on South Pearl Street in the City ofAlbany at around 5:10 a.m. As Everett was about to get out of the stopped car, a man carrying a gunapproached Bell on the driver's side of car, pointed a gun at his head and demanded money; inresponse, Bell turned over money, jewelry and his cell phone. A second gunman—who thePeople posited was defendant—approached Everett on the passenger side with a gun anddemanded he empty his pockets, which he did. The victims were then forced out of the car to lay onthe ground while their vehicle was searched and, during the melee, both victims were struck in the headwith guns. After the gunmen fled, Everett found—on the ground by the vehicle—a prepaidcell phone which was later determined to belong to defendant.[FN1]Shortly [*2]thereafter, while the victims were reporting the crime to theAlbany Police Department and turning over defendant's cell phone, a call came in to defendant's phonefrom the cell phone stolen from Bell during the robbery; Bell answered the call on defendant's phoneand arranged to switch cell phones with the caller, but the caller did not show at the designated meetingsite. The gunmen had worn bandanas covering their faces and could not be identified by the victims,who were able to describe the height and clothing of the second gunman. Defendant's accomplice wasnot apprehended.
A police sergeant was dispatched in a marked vehicle to the home of defendant's parents in Albanyat about 7:30 a.m. and observed defendant exit a taxi cab; when defendant saw the police car, he fledinto his parents' backyard and then jumped a fence, eluding police. A detective contacted defendant'sparents using defendant's cell phone, and the parents eventually brought defendant to the precinctwhere he agreed to be questioned. After initially claiming that he had slept at his sister's apartment thatevening (which the sister denied when called by the detective), and being informed that his cell phonewas found at the scene, defendant confessed to participating in the robbery as the second gunman,representing that the gun he carried was not workable. His admissions were reduced to a writtenstatement; defendant represented that he was unable to read, and the statement was read to him in thepresence of two detectives, and defendant affirmed it was "the truth" and signed it. A .25 calibersemiautomatic handgun was recovered beneath leaves near the fence in his parents' backyard later thatmorning. Upon his convictions, defendant was sentenced to concurrent prison terms of 10 years andfive years, with three years of postrelease supervision. Defendant now appeals.
Defendant's challenge to the verdict as contrary to the weight of the evidence is not convincing.While a different finding would not have been unreasonable, we have weighed the conflicting testimonyand fair inferences to be drawn from the evidence and, giving deference to the jury's superior ability toassess witness credibility, we find that the verdict was well supported by the credible evidence (seePeople v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Romero, 7 NY3d 633,643-644 [2006]). The pivotal issue was defendant's identity as the second gunman. The proof, stronglysupporting the jury's verdict, included defendant's admissions and detailed signed statement to thepolice in which he admitted using an inoperable .25 caliber handgun in the robbery;[FN2]a handgun, later determined to be inoperable, was found in defendant's parents' yard where he had fledfrom the police hours after the robbery. A taxi driver identified defendant—who the policeobserved fleeing—as the person he dropped off at defendant's parents' home. Further,defendant's cell phone was recovered next to the car immediately after the robbery, and that phone wascalled from Bell's stolen cell phone within 10 to 15 minutes after the robbery by a person demandingthe return of defendant's phone.
As for the descriptions given of defendant, while there was not uniformity, the [*3]discrepancies raised a credibility issue for the jury and did not compelcrediting defendant's misidentification defense given the other strong evidence establishing defendant'sidentity as the second gunman. That the gun could not be conclusively linked to the robbery and thevictims could not identify defendant did not undermine the strong proof connecting defendant to thiscrime. The testimony of defendant's parents, which was not consistent, that defendant slept at hissister's house that night and had lost his cell phone at a club the prior night, was not credible, and bothconceded that he went to the police station interview voluntarily. In light of the foregoing, we do not findthat the verdict was contrary to the weight of credible evidence.
Next, defendant contends that his right to present a complete defense was violated when CountyCourt denied defense counsel's request, opposed by the People, to allow defendant—during thePeople's case—to "stand before the jury so they can [gauge] his height and weight." The requestcame during the cross-examination of Bell, the People's first witness. While the denial of defendant'sparticular request to display defendant preserved an issue of law as to that evidentiary ruling(see CPL 470.05 [2]), the constitutional claims raised for the first time on appeal areunpreserved. In any event, the defense's request for a body display by defendant was made out oforder, during the People's presentation of evidence (see CPL 260.30 [4], [5]), and we discernno abuse of discretion in the court's denial at that point in the trial (see People v Whipple, 97NY2d 1, 6 [2001]; cf. People v Terry, 309 AD2d 973, 974-975 [2003]). The defense neverrenewed the request during its presentation of proof, as it could have, and the court never intimated thatdefendant would be required to take the stand in order to present this nontestimonial evidence (cf.People v Allen, 140 AD2d 229, 231 [1988], lv denied 72 NY2d 1043 [1988]).Accordingly, no error occurred.
Finally, despite defendant's age (17), failed education and lack of a violent criminal history, we donot find that his sentence was unduly harsh or excessive. It was significantly less than the maximumauthorized sentence and, given defendant's active role in this violent crime, we perceive no reason toreduce the sentence in the interest of justice.
Cardona, P.J., Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant lived with his parents,and the cell phone listed defendant's parents' number under "home" and his father's cell number under"dad." Defendant's father confirmed that the cell number was defendant's.
Footnote 2: The People only needed to provethat defendant or his accomplice "[d]isplay[ed] what appear[ed] to be" a gun (Penal Law §160.10 [2] [b]) under the first robbery count, not that it was operable (see People v Lopez, 73NY2d 214, 219-223 [1989]).