| People v Cascio |
| 2010 NY Slip Op 09810 [79 AD3d 1809] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ThomasCascio, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered October 28, 2009. The judgment convicted defendant, upon a jury verdict, of robbery inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of robbery inthe third degree (Penal Law § 160.05), defendant contends that Supreme Court erred inaccepting the verdict after a juror stated during jury polling that "I think he was not guilty on thethird, we all agreed, but . . . ." We reject defendant's contention that the court wasrequired to direct the jury to return for further deliberations as soon as the juror made thatstatement. Rather, we conclude that the court properly exercised its discretion by insteadclarifying both what the juror meant by the statement and what her verdict was (see generally People v Simms, 13NY3d 867, 871 [2009]; People v Mercado, 91 NY2d 960, 962-963 [1998];People v Francois, 297 AD2d 750, 751 [2002]). During the court's ensuing discussion withthe juror, it became clear that the juror had found defendant guilty, and that the reason for herstatement during jury polling was that she had initially believed that defendant was not guilty buthad thereafter agreed with her fellow jurors that he had committed the crime.
We further reject the contention of defendant that the court erred in instructing the jury withrespect to the definition of proof beyond a reasonable doubt. The court's charge, which wasanalogous to the reasonable doubt charge set forth in CJI2d(NY), accurately stated the law (see People v Perkins, 27 AD3d890, 893 [2006], lv denied 6 NY3d 897 [2006], 7 NY3d 761 [2006]). The fact thatthe charge did not include certain language that defendant believed would be included did nothave a detrimental effect on defense counsel's summation in referring to that language, inasmuchas the jury had been informed several times that it was the role of the court to instruct them onthe law.
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict finding that defendant was the individual[*2]who committed the robbery is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The Peoplepresented evidence that an eyewitness had identified defendant from a photo array five days afterthe crime. In addition, the evidence included clothing from defendant's closet containing a flawon a jacket sleeve that was consistent with the perpetrator's clothing, the bank surveillance videosand photographs, and the testimony of a police officer that he recognized defendant from a newsairing of a bank surveillance photograph. Thus, while a different verdict may not have beenunreasonable, upon independently "weigh[ing] the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony," we conclude that the verdict is not against the weight of the evidence (People vRayam, 94 NY2d 557, 560 [2000] [internal quotation marks omitted]; see Bleakley,69 NY2d at 495).
Defendant further contends that the court erred in refusing to suppress the identification ofdefendant in court by the witness who had identified him in the photo array because theaforementioned bank surveillance photograph of the robber was aired on the news before thewitness had viewed the photo array. We reject that contention. There is no indication that thewitness saw the broadcast or, in the event that he had, that the news broadcast impaired thefairness of the photo array procedure (see generally People v Rodriguez, 49 AD3d 433, 434 [2008], lvdenied 10 NY3d 964 [2008]). "We cannot . . . conceive of how viewing a clearimage of the robber [from a bank surveillance photograph] is an 'undue' or improper suggestionof what he [or she] looked like" (People v Gee, 99 NY2d 158, 164 [2002], reargdenied 99 NY2d 652 [2003]). "Undue suggestiveness lies at the heart of Wadejurisprudence, but that concern is not ordinarily implicated when (as here) the [witness has seen]an actual depiction of the robbery [he himself] witnessed" (id. at 163).
The court also did not err in refusing to suppress statements that defendant made bytelephone to his mother, in the presence of a police detective. Defendant was aware of thedetective's presence throughout the conversation, and he nevertheless spoke freely andunguardedly. Spontaneous statements are admissible, even when made after the right to counselhas attached (see People v Gonzales, 75 NY2d 938 [1990], cert denied 498 US833 [1990]; People v Rivers, 56 NY2d 476, 479 [1982], rearg denied 57 NY2d775 [1982]; People v Cooper, 38AD3d 678, 680 [2007]). Defendant's reliance on People v Jackson (202 AD2d 689,690-691 [1994]) is misplaced, because here the police respected defendant's assertion of the rightto counsel, and there was no surreptitious or improper maneuvering to overhear defendant'stelephone conversation in contravention thereof.
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,Carni and Sconiers, JJ.