| People v McCray |
| 2009 NY Slip Op 06890 [66 AD3d 1338] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DemetriusMcCray, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedNovember 7, 2007. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree (two counts) and criminal possession of a weapon in the second degree.
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 oftwo counts of robbery in the first degree (Penal Law § 160.15 [1], [2]) and one count ofcriminal possession of a weapon in the second degree (§ 265.03 [former (2)]). CountyCourt properly exercised its discretion in precluding defendant from presenting expert testimonywith respect to the reliability of eyewitness identifications. None of the eyewitnesses to therobbery identified defendant as the perpetrator at trial, and thus such expert testimony was notrelevant to their testimony (seegenerally People v LeGrand, 8 NY3d 449, 452 [2007]). Further, even if theeyewitnesses had identified defendant as the perpetrator at trial, we conclude that there iscorroborating evidence of his guilt independent of their descriptions of the perpetrator (see People v Chisolm, 57 AD3d223, 223-224 [2008], lv denied 12 NY3d 782 [2009]).
Defendant failed to preserve for our review his contention that the court erred in combiningthe second and third steps of the Batson inquiry rather than separately reviewing theirmerits (see People v Coleman, 5 AD3d 1074, 1075 [2004], lv denied 3 NY3d638 [2004]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Defendant also failed topreserve for our review his further contention that the evidence is legally insufficient to supportthe conviction (see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]).
The court properly determined that a witness who testified with respect to inculpatorystatements made by defendant to him while they were incarcerated was not acting as an agent ofthe government when the statements were made (see People v Cardona, 41 NY2d 333,335 [1977]; People v Davis, 38AD3d 1170, 1171 [2007], lv denied 9 NY3d 842 [2007], cert denied 552 US—, 128 S Ct [*2]713 [2007]). We reject defendant's furthercontention that the photo array shown to one of the eyewitnesses to the robbery was undulysuggestive (see generally People v Chipp, 75 NY2d 327, 335-336 [1990], cert denied498 US 833 [1990]). We note in any event that the eyewitness in question did not identifydefendant as the perpetrator at trial (seegenerally People v Bradley, 48 AD3d 1145 [2008], lv denied 10 NY3d 860[2008]). Defendant failed to preserve for our review his contention that he was denied a fair trialbased on prosecutorial misconduct during summation (see People v Douglas, 60 AD3d 1377 [2009]), and we decline toexercise our power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]). Contrary to defendant's further contention, neither defensecounsel's failure to object to the alleged instances of prosecutorial misconduct nor any of defensecounsel's other alleged shortcomings constituted ineffective assistance of counsel (see People v Walker, 50 AD3d1452, 1453 [2008], lv denied 11 NY3d 795 [2008], reconsideration denied11 NY3d 931 [2008]). Rather, viewing the evidence, the law, and the circumstances of this case,in totality and as of the time of representation, we conclude that defense counsel providedmeaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt,Peradotto, Green and Gorski, JJ.