| People v Baxter |
| 2013 NY Slip Op 00220 [102 AD3d 805] |
| January 16, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jason Baxter, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Judith R.Sternberg, and Jason R. Richards of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Honorof, J.), rendered May 24, 2010, convicting him of robbery in the second degree(two counts), grand larceny in the fourth degree, assault in the third degree, andpossession of burglar's tools, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing pursuant to a stipulation in lieu ofmotions, of the suppression of identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the hearing court properly denied his requestto suppress a showup identification. Here, the showup took place less than one hour afterthe crime was reported, within a few blocks of the crime scene, and was not undulysuggestive (see People vMais, 71 AD3d 1163, 1165 [2010]; People v Gonzalez, 57 AD3d 560, 561 [2008]).
The defendant's contention that the Supreme Court erred in denying his applicationto proceed pro se is without merit, as his application was neither timely nor unequivocal(see People v McIntyre, 36 NY2d 10, 14-15 [1974]; People v White, 60 AD3d877, 878 [2009]; People vJenkins, 45 AD3d 864, 864-865 [2007]; People v Carter, 299 AD2d418, 418-419 [2002]). Similarly, the defendant's contention that the Supreme Courtimprovidently exercised its discretion in removing him from the courtroom is withoutmerit (see CPL 260.20; People v Byrnes, 33 NY2d 343, 349 [1974]). Therecord shows that the defendant forfeited his right to be present at trial by engaging indisruptive behavior, which caused his removal from the courtroom (see People v Garcia, 57 AD3d918, 918 [2008]; People vSanchez, 7 AD3d 645, 646 [2004]).
The defendant's contentions that the trial court failed to provide an expandedidentification charge and circumstantial evidence charge to the jury, and that suchfailures deprived him of a fair trial and constituted reversible error, are unpreserved forappellate review (see CPL 470.05 [2]; People v Cox, 54 AD3d 684, 685 [2008]; People vJohnson, 293 AD2d 489, 489 [2002]), and in any event, are without merit.
The defendant failed to preserve for appellate review his contention that there waslegally insufficient proof of his guilt of the crime of possession of burglar's tools (seeCPL 470.05 [2]; [*2]People v Hawkins, 11 NY3d 484, 491-492[2008]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficientto establish the defendant's guilt of the crime of possession of burglar's tools beyond areasonable doubt (see Penal Law § 140.35; People v Wendley, 260AD2d 185, 185 [1999]; cf. People v Hernandez, 127 AD2d 790, 791-792[1987]). Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348 [2007]), we are satisfied that the verdict of guilt was not against the weightof the evidence (see People vRomero, 7 NY3d 633 [2006]).
The defendant was not deprived of the effective assistance of counsel (see People v Caban, 5 NY3d143, 152 [2005]; People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to the defendant's contention, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). The defendant's contention that theSupreme Court erred in imposing an amount of restitution without a hearing becausethere was insufficient evidence in the record to allow the Supreme Court to determine theamount he should pay is unpreserved for appellate review (see CPL 470.05 [2];People v Harris, 72 AD3d1110, 1112 [2010]; Peoplev Lawson, 65 AD3d 1380, 1380 [2009]). In any event, his contention is withoutmerit, as the presentence report provided the Supreme Court with a sufficient evidentiarybasis to determine the amount of restitution (see People v Price, 95 AD3d 905, 906 [2012]; People v Henry, 64 AD3d804, 806-807 [2009]; People v Charles, 309 AD2d 873, 874 [2003]).
The defendant's remaining contentions, including those raised in his pro sesupplemental brief, are unpreserved for appellate review, and, in any event, are withoutmerit. Mastro, J.P., Dickerson, Sgroi and Hinds-Radix, JJ., concur.