| People v Exum |
| 2009 NY Slip Op 06888 [66 AD3d 1336] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jamar Exum,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered August16, 2006. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree(eight counts) and robbery in the second degree (four counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofeight counts of robbery in the first degree (Penal Law § 160.15 [2], [4]) and four counts ofrobbery in the second degree (§ 160.10 [2] [b]), arising from the armed robbery of arestaurant and some of its occupants. Contrary to the contention of defendant, there wassufficient independent evidence to corroborate the testimony and statements of his allegedaccomplices (see CPL 60.22 [1]; see generally People v Besser, 96 NY2d 136,143-144 [2001]). The People established by the testimony of a witness who was not anaccomplice that, shortly before the robbery occurred, defendant was in the company of the twomen who committed it. The People further corroborated the accomplice testimony that defendanthad ordered and picked up food at the restaurant in order to "case" the restaurant by presentingthe testimony of a restaurant employee establishing that a person using defendant's first nameordered and picked up food approximately 30 minutes before the robbery was committed.Further, the testimony of the victims established that the robbers were armed with a handgun anda shotgun, respectively, and that defendant and the two robbers were passengers in the getawayvehicle, which was pulled over by the police immediately following the robbery. In addition, apolice officer who responded to the alarm at the restaurant testified that he observed that asawed-off shotgun was hanging by a cord around the neck of one of the robbers as the robberwas removed from the getaway vehicle. We thus conclude that the People presented the requisitetestimony that "tended to connect" defendant with the robbery (Besser, 96 NY2d at 141;cf. People v Knightner, 11 AD3d1002, 1004 [2004], lv denied 4 NY3d 745 [2004]). Defendant failed to preserve forour review his contention that the verdict is repugnant (see People v Alfaro, 66 NY2d985, 987 [1985]; People vWinslow, 57 AD3d 1464 [2008], lv denied 12 NY3d 789 [2009]), and wedecline to exercise our power to review that contention as a matter of discretion in the interest ofjustice (see Winslow, 57 AD3d 1464 [2008]). The further contention of defendant that hewas denied due process based on the People's alleged failure to disclose that one of theaccomplices has a youthful offender adjudication involves information outside the [*2]record on appeal and must therefore be raised by way of a CPLarticle 440 motion (see generally Peoplev Barnes, 56 AD3d 1171, 1171-1172 [2008]). We have considered defendant'sremaining contentions and conclude that they are without merit. Present—Scudder, P.J.,Hurlbutt, Peradotto, Green and Gorski, JJ.