| People v Young |
| 2010 NY Slip Op 04876 [74 AD3d 1471] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Timothy L.Young, Appellant. |
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Rose, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered April 7,2008 in Otsego County, upon a verdict convicting defendant of the crime of robbery in thesecond degree (eight counts).
Two men wearing masks and wielding handguns pushed their way into an apartment, tied upone occupant, forced three others onto the floor, and then stole money and marihuana. When thevictims reported the incident, they identified one of the robbers as Vincent Colletti because theyall knew him and had recognized his speech impediment during the robbery. After telephonerecords and the victims' description led police to defendant, he was charged as Colletti'saccomplice with eight counts of robbery in the second degree. Following a jury trial, defendantwas convicted as charged and sentenced as a second violent felony offender to eight concurrentprison terms of 15 years with five years of postrelease supervision.
Upon appeal, defendant contends that the verdict is against the weight of the evidencebecause Colletti's accomplice wore a mask and could not be positively identified, the victims'initial descriptions of the accomplice do not match his appearance and there is no physicalevidence tying him to the crimes. Defendant also challenges the credibility of Nicole VanHeusen, a companion of his whose testimony placed him with Colletti at the scene of the crime.At trial, Van Heusen and Morgan Purcell testified that, on the day of the robbery, defendant andVan Heusen drove to Purcell's apartment where they met Colletti, and that Van Heusen laterdrove Colletti and defendant to the victims' house shortly before the robbery occurred. VanHeusen further testified that she waited in the car and, when Colletti and defendant returned,Colletti had money and marihuana. This, together with the victims' identification of Colletti asone of the two robbers, was strong circumstantial evidence supporting the jury's verdict thatdefendant was the second robber. Also, both Purcell and one of the victims identified defendantat trial. Although the defense pointed out the inconsistencies in the testimony of these witnessesand presented expert testimony regarding the unreliability of eyewitness testimony, we defer tothe jury's opportunity to resolve these credibility issues and are not persuaded that the verdict iscontrary to the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Sims, 57 AD3d 1106,1108-1109 [2008], lv denied 12 NY3d 762 [2009]; People v Robinson, 53 AD3d 681, 683 [2008], lv denied11 NY3d 794 [2008]).
Defendant also argues that Purcell should not have been permitted to make an in-courtidentification because his pretrial identification had been tainted by an unduly suggestive photoarray. At an independent source hearing, however, Purcell testified that, shortly before therobbery occurred, he had a telephone conversation with defendant during which defendantidentified himself by name. Purcell also testified that he then spent about 30 minutes observingand interacting with defendant at his apartment before the robbery and again for about 10minutes afterward. This provided ample record support for Supreme Court's determination thatthere was clear and convincing evidence of an independent basis for Purcell's in-courtidentification of defendant (see People vAllah, 57 AD3d 1115, 1117 [2008], lv denied 12 NY3d 780 [2009]; People v Mitchell, 42 AD3d 758,760-761 [2007], lv denied 9 NY3d 963 [2007]).
Next, defendant contends that his counsel was ineffective for having failed to request apolice officer's notes at the Wade hearing, and then not using those notes when they weredisclosed with other Rosario materials shortly before the trial began. Although the notesin question included a statement by Purcell describing Colletti's accomplice as having blond hairwhile defendant has brown hair, it would have had minimal exculpatory value and its oversightis not the sort of single substantial error by counsel that qualifies as ineffective representation(see People v Hobot, 84 NY2d 1021, 1023-1024 [1995]). In addition, defense counselmade appropriate pretrial motions, pursued a reasonable defense theory based upon weaknessesin the People's proof of the identity of the second robber, made appropriate objections, andaggressively cross-examined the witnesses as to their identifications and past statements (see People v Gilmore, 72 AD3d1191, 1194 [2010]; People vBoyce, 2 AD3d 984, 986 [2003], lv denied 2 NY3d 796 [2004]). Inasmuch asthe representation need not be entirely error free and viewing the totality of the circumstances atthe time of the representation, we find that defendant received meaningful representation (seePeople v Baldi, 54 NY2d 137, 147 [1981]; People v Varmette, 70 AD3d 1167, 1172 [2010], lv denied14 NY3d 845 [2010]; People vEchavarria, 53 AD3d 859, 864 [2008], lv denied 11 NY3d 832 [2008]).
Defendant's remaining contentions are also unavailing. The People's delay in disclosingcertain Rosario/Brady materials before trial did not prejudice defendant because he wasafforded a meaningful opportunity to use these materials (see People v Williams, 50 AD3d 1177, 1179 [2008]; People v McCrone, 12 AD3d 848,850 [2004], lv denied 4 NY3d 800 [2005]). Nor can we agree that his sentences are harshand excessive. Given the nature and seriousness of the charges against him, his prior violentfelony conviction and his lack of remorse, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of his sentences (see People v Fairley, 63 AD3d 1288, 1290 [2009], lvdenied 13 NY3d 743 [2009]). As for defendant's [*2]posttrialmotion pursuant to CPL 330.30 (2) which alleged juror misconduct, Supreme Court did not err indenying it without a hearing because the moving papers do not allege any improper outsideinfluence upon the jury or the existence of any extraordinary circumstances that would warrantan invasion of the jury's deliberative process (see CPL 330.40 [2] [e] [i]; People v Samandarov, 13 NY3d433, 438 [2009]; People v Rodriguez, 71 NY2d 214, 218 n 1 [1988]; People v Karen, 17 AD3d 865,867 [2005], lv denied 5 NY3d 764 [2005]; People v Anderson, 249 AD2d 405,405-406 [1998], lv denied 92 NY2d 877 [1998]).
Peters, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.