| People v Wedlington |
| 2009 NY Slip Op 08653 [67 AD3d 1472] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AntoineWedlington, Appellant. |
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Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered April22, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of robbery inthe second degree (Penal Law § 160.10 [1]), defendant contends that reversal is requiredbased upon, inter alia, a Payton violation (Payton v New York, 445 US 573[1980]). We conclude that there was in fact no Payton violation. The People presentedevidence at the suppression hearing establishing that, after the commission of the robbery, thevictim observed defendant and his codefendant enter a house where, pursuant to thedetermination of County Court, defendant was a regular overnight visitor. Upon responding tothe victim's 911 telephone call, the police pushed aside the cardboard and curtain covering thefront window of the house and observed defendant and his codefendant inside the house. Thepolice identified themselves, and the occupants permitted their entry only after the policeattempted to break down the door. Contrary to the contention of defendant, the police did notviolate his Payton rights inasmuch as the court properly determined that there wereexigent circumstances justifying the entry, i.e., the risk that defendant and his codefendant woulddispose of the stolen money (see People v Saunders, 290 AD2d 461, 463 [2002], lvdenied 98 NY2d 681 [2002]; People v Foster, 245 AD2d 1074 [1997], lvdenied 91 NY2d 972 [1998]).
We also reject the contention of defendant that the People failed to prove his guilt beyond areasonable doubt. To the extent that defendant's contention may be deemed to challenge the legalsufficiency of the evidence, we conclude that defendant's contention lacks merit. Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620,621 [1983]), we conclude that the evidence is legally sufficient to establish defendant'scommission of robbery in the second degree pursuant to Penal Law § 160.10 (1) (seegenerally People v Conway, 6 NY3d 869, 872 [2006]; People v Santi, 3 NY3d 234,246 [2004]). To the extent that defendant's contention may be deemed to challenge the weight ofthe evidence, we reject that contention as well. Viewing the evidence in light of the elements ofthe crime of robbery as charged to the jury (see People v Danielson, 9 NY3d 342, 349[2007]), we conclude that the verdict is not against the [*2]weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Because the victim's credibility was damaged at trial, we conclude thatan acquittal would not have been unreasonable (see Danielson, 9 NY3d at 348;People v Alexis, 65 AD3d 1160 [2009]; People v Griffin, 63 AD3d 635, 638[1978]). However, "giving 'appropriate deference to the jury's superior opportunity to assess thewitnesses' credibility' " (People v Marshall, 65 AD3d 710, 712 [2009]), we conclude thatthe jury was entitled to credit the victim's version of events over that of defendant.
Contrary to defendant's further contention, the court properly determined that theprosecutor's explanation for exercising a peremptory challenge with respect to anAfrican-American prospective juror was race-neutral and not pretextual (see generallyPeople v Collins, 63 AD3d 1609 [2009], lv denied 13 NY3d 795 [2009]; Peoplev Wint, 237 AD2d 195, 196-197 [1997], lv denied 89 NY2d 1103 [1997]). Theprosecutor excused the prospective juror because he previously had witnessed a shooting, heknew both the shooter and the victim of the shooting, and he had failed to contact the police withinformation concerning that crime either on the night of the shooting or at any time thereafter.We note that the prosecutor had previously excused a non-African-American prospective jurorfor similar reasons.
Defendant further contends that the court erred in failing to give an adverse inferenceinstruction to the jury as required by Penal Law § 450.10 (10), inasmuch as the statutoryprocedure for returning stolen property to the victim, i.e., the cash, was not followed (seePeople v Perkins, 56 AD3d 944, 945 [2008], lv denied 12 NY3d 786 [2009];People v Watkins, 239 AD2d 448 [1997], lv denied 91 NY2d 837 [1997];People v Graham, 186 AD2d 47 [1992], lv denied 80 NY2d 975 [1992]).Defendant never requested such an instruction and thus failed to preserve his contention for ourreview (see CPL 470.05 [2]). In fact, the record establishes that the only relief defendantrequested was that the cash stolen from the victim not be admitted in evidence, and that reliefwas granted. In any event, there is no indication in the record that either defendant or theprosecution ever sought to examine or test the cash (see People v Lathigee, 254 AD2d687 [1998], lv denied 92 NY2d 1034 [1998]), nor is there any indication that theviolation of Penal Law § 450.10 was intentional or that the cash was returned in bad faith(see People v McDowell, 264 AD2d 858 [1999]; People v Perez, 262 AD2d 502[1999]; Graham, 186 AD2d 47 [1992]).
We also reject defendant's contention that reversal is required based on the court's refusal toinstruct the jury that a statement made by the codefendant at his arraignment threatening to killthe victim could not be attributed to defendant. Even assuming, arguendo, that the court erred inrefusing to give the instruction (see generally People v Jackson, 45 AD3d 433, 434[2007], lv denied 10 NY3d 812 [2008], cert denied 555 US —, 129 S Ct462 [2008]; People v Paulino, 187 AD2d 736 [1992], lv denied 81 NY2d 792[1993]), we conclude that the error is harmless because there is no reasonable possibility that itcontributed to the jury's verdict (see People v Douglas, 4 NY3d 777, 779 [2005];People v Crimmins, 36 NY2d 230, 237 [1975]). The court generally instructed the jurythat it must consider the evidence against each defendant separately, the statement did notdirectly implicate either defendant or the codefendant in the crime, and the discovery of themoney on the codefendant as described by the victim and in the same amount as described by thevictim rendered negligible any possible adverse inference that may have been created by thecourt's refusal to give the instruction. Finally, the court did not err in denying defendant's CPL330.30 (1) motion to set aside the verdict. Present—Scudder, P.J., Hurlbutt, Martoche,Centra and Peradotto, JJ.