| People v Samuel |
| 2011 NY Slip Op 07662 [88 AD3d 1020] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Darran Samuel, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan J.Dennehy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered July 31, 2006, convicting him of murder in the second degree, robbery in the firstdegree, and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of murder in the second degree under a theory of felonymurder, robbery in the first degree, and attempted robbery in the second degree based upon hisintent to take an iPod from one of four boys. The People adduced evidence that, when the boysrefused to surrender the iPod, the defendant summoned several others to assist in the robbery. Amelee ensued, during which one of the four boys was fatally stabbed by one of the otherparticipants in the attack. The defendant did not obtain the iPod, but a cell phone belonging toone of the four victims was taken by one of the defendant's accomplices.
The defendant's contention that the evidence was legally insufficient to prove his guilt ofrobbery in the first degree because he and his accomplices intended to steal the iPod and not thecell phone (see Penal Law §§ 20.00, 160.15) is unpreserved for appellatereview (see People v Hawkins, 11NY3d 484 [2008]; People v Gray, 86 NY2d 10 [1995]) and, in any event, withoutmerit.
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 NY3d342 [2007]; People v Romero,7 NY3d 633 [2006]).
Contrary to the defendant's contention, he failed to meet his burden of establishing, by apreponderance of the evidence (see Penal Law § 25.00 [2]), an affirmative defenseto felony murder under Penal Law § 125.25 (3). In order to establish the affirmativedefense to felony murder, a defendant must establish, among other things, that he or she "(a)[d]id not commit the homicidal act or in any way solicit, request, command, importune, cause oraid the commission thereof; and (b) [w]as not armed with a deadly weapon, or any instrument,article or substance readily capable of causing death or serious physical injury and of a sort notordinarily carried in public places by law-abiding persons; and (c) [h]ad no reasonable ground tobelieve that any other participant was armed with such a weapon, instrument, article orsubstance; and (d) [h]ad no reasonable ground to believe that any other participant intended toengage in conduct likely to result in death or serious physical injury" (id.). At trial, thedefendant testified that he knew that his cousin, who participated in the crime, was a member ofthe Crips, which the defendant admitted was a dangerous street gang. A prosecution witnesstestified that the defendant told him that the defendant had observed his cousin with a foldingknife. In addition, the defendant testified that his cousin encouraged him to engage in an act ofviolence against one of the four boys, without provocation. The People's witnesses testified thatthe defendant instigated the violent assault and robbery by aggressively demanding the iPod,jumping on or otherwise grabbing one of the boys in an attempt to get the iPod, calling over orsignaling to his accomplices to assist him, and punching another one of the boys in the face.
Although some of the prosecutor's questions and comments on cross-examination wereimproper, any error was harmless, as there was overwhelming evidence of the defendant's guilt,and no significant probability that the error contributed to his convictions (see People vCrimmins, 36 NY2d 230, 241-242 [1975]; cf. People v Heman, 198 AD2d 434, 435[1993]).
Furthermore, the defendant was not deprived of the effective assistance of counsel.Considering the totality of the evidence, the law, and the circumstances of the case, trial counselprovided meaningful representation (see People v Benevento, 91 NY2d 708 [1998]; People v Masaguilar, 86 AD3d619 [2011]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Angiolillo, J.P., Leventhal, Austinand Roman, JJ., concur.