| People v Safford |
| 2010 NY Slip Op 05153 [74 AD3d 1835] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JermaineSafford, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Brian P. Dassero of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered April 3, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst 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 ofrobbery in the first degree (Penal Law § 160.15 [4]) in connection with the armed robberyof a convenience store. Contrary to the contention of defendant, the evidence is legally sufficientto establish his identity as the perpetrator of the crime based solely on the fact that hisfingerprints were found on a doorknob in a location of the convenience store that generally is notopen to the public. "Fingerprint evidence alone is legally sufficient evidence to support aconviction under appropriate circumstances" (People v Howell, 46 AD3d 1464, 1464 [2007], lv denied10 NY3d 841 [2008]), and we conclude that such circumstances exist here. Although the soleeyewitness to the robbery was unable to identify defendant as the perpetrator, we conclude thatthe presence of defendant's fingerprints on the doorknob "may not be accounted for by anyhypothesis of defendant's innocence" (People v Rusho, 291 AD2d 855, 856 [2002],lv denied 98 NY2d 680 [2002]). Thus, viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it islegally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d490, 495 [1987]). In addition, viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). We note that, at trial,defendant did not dispute that his fingerprints were on the doorknob inside the store. Rather, thedefense theory was that defendant touched the doorknob when he was in the store applying for ajob on a date prior to the robbery. There was no evidence to support that theory, however, andthe jury was free to credit the theory of the People over that of the defense in any event (seegenerally id.).
Defendant failed to preserve for our review his contention that Supreme Court erred infailing to [*2]conduct a hearing to determine the chain of custodyof a store surveillance videotape that was no longer viewable by the time of trial. We note withrespect to the videotape that the People did not seek to have it admitted in evidence at trial,although they did present testimony concerning the videotape. In any event, any failure by thePeople to preserve the videotape so that it was viewable at trial was sufficiently addressed by theadverse inference charge given by the court (see generally People v English, 277 AD2d1021 [2000], lv denied 96 NY2d 783 [2001]). Indeed, defendant did not object to thecharge as given, and he did not request any further relief.
Defendant further contends that he was deprived of his right to effective assistance ofcounsel because defense counsel did not honor his request to present the testimony of an allegedalibi witness. We reject that contention, inasmuch as the record demonstrates that there werelegitimate strategic reasons for defense counsel's refusal to call that proposed witness (see People v Cancer, 16 AD3d835, 840 [2005], lv denied 5 NY3d 826 [2005]). Also contrary to the contention ofdefendant, defense counsel's single sarcastic reference, outside the presence of the jury, to the"infinite wisdom" of defendant in wanting to present alibi witnesses did not " 'seriouslycompromise[ ]' " his right to a fair trial (People v Clark, 6 AD3d 1066, 1067 [2004], lv denied 3NY3d 638 [2004]), nor did defense counsel thereby become a witness against defendant(cf. People v Kellar, 213 AD2d 1063 [1995]). Finally, the sentence is not undulyharsh or severe. Present—Centra, J.P., Fahey, Peradotto, Lindley and Pine, JJ.