| People v Pulliam |
| 2009 NY Slip Op 03923 [62 AD3d 814] |
| May 12, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KerryPulliam, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.),rendered August 1, 2007, convicting him of robbery in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]; People v Santos,86 NY2d 869 [1995]; People vLeon, 19 AD3d 509, 510 [2005]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish that the defendant took possession of the complainant'sproperty by exercising dominion and control over his bag "for a period of time, howevertemporary, in a manner wholly inconsistent with the owner's continued rights" (People vJennings, 69 NY2d 103, 118 [1986]; People v Livigni, 288 AD2d 323 [2001];People v Jones, 265 AD2d 159 [1999]). In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not againstthe weight of the evidence (see People vRomero, 7 NY3d 633 [2006]).[*2]
The defendant contends that he should have been givennotice pursuant to CPL 710.30 of statements that he made to the police while in custody. Asthere was a question of whether the defendant's statements were given voluntarily, the defendanthad "the right to have a court review the circumstances under which the statement[s were] givenand to determine [their] voluntariness, including whether [they were] truly spontaneous or thefunctional equivalent of interrogation" (People v Chase, 85 NY2d 493, 500 [1995];see generally People v Cox, 215 AD2d 684 [1995]; cf. People v Kimbell, 169AD2d 880 [1991]). However, because the evidence of the defendant's guilt, without reference tothe error, was overwhelming, and there is no reasonable possibility that the error might havecontributed to the defendant's conviction, this error was harmless beyond a reasonable doubt(see People v Crimmins, 36 NY2d 230, 243 [1975]; People v Rush, 44 AD3d 799 [2007]; People v Evans, 256AD2d 520 [1998]).
Contrary to the defendant's contention, the trial court did not err in denying his request tocharge attempted robbery in the second degree as a lesser-included offense of robbery in thesecond degree. There was no reasonable view of the evidence that would support a jury findingthat the defendant had only committed an attempted robbery, as the evidence demonstrated thatthe defendant was in possession and control of the complainant's bag (see People vJennings, 69 NY2d at 118; People v Livigni, 288 AD2d 323 [2001]; People vJones, 265 AD2d 159 [1999]).
Also contrary to the defendant's contention, the Supreme Court did not err in admitting arecording into evidence (see People v Buie, 86 NY2d 501 [1995]; People v Marino, 21 AD3d 430[2005]; People v Jamerson, 21AD3d 428 [2005]; People v Lewis, 222 AD2d 1058 [1995]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83[1982]). Spolzino, J.P., Santucci, Belen and Lott, JJ., concur.