| People v Maxwell |
| 2013 NY Slip Op 00847 [103 AD3d 1239] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWilbert T. Maxwell, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered January 31, 2011. The judgment convicted defendant, upon a nonjury verdict,of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a nonjury verdict,of robbery in the first degree (Penal Law § 160.15 [4]), defendant contends thatthe evidence is legally insufficient to support his conviction because the People failed toestablish that the gun recovered by the police and allegedly used by defendant in therobbery was a "pistol, revolver, rifle, shotgun, machine gun or other firearm" within themeaning of Penal Law § 160.15 (4). We reject that contention. A person is guiltyof robbery in the first degree pursuant to Penal Law § 160.15 (4) "when he [or she]forcibly steals property and when, in the course of the commission of the crime or ofimmediate flight therefrom, he [or she] . . . [d]isplays what appears to be apistol, revolver, rifle, shotgun, machine gun or other firearm." Thus, in order to convictdefendant of that crime, County Court "was not required to find that defendant displayedan actual firearm during the commission of the crime, but only that [ ]he displayed whatappeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm"(People v Jennings, 279 AD2d 284, 285 [2001], lv denied 96 NY2d 830[2001]), and there is ample evidence of that element. Indeed, the victim described theweapon used in the robbery as a "big black gun," and she drew a picture of the gun,which was admitted in evidence. The investigating detective testified that, based uponthat drawing, he believed that the weapon was a MAC-10, a machine-type pistol. Thepolice subsequently recovered a loaded M-11 pistol in connection with anotherinvestigation, and the major DNA profile from that gun matched that of defendant. Attrial, the victim identified the M-11 as the gun defendant pointed at her during therobbery. Defendant also contends that the evidence is legally insufficient to support theconviction because the victim's testimony lacked credibility. We reject that contention.The victim's testimony was not incredible as a matter of law "inasmuch as it was notimpossible of belief, i.e., it was not manifestly untrue, physically impossible, contrary toexperience, or self-contradictory" (People v Gaston, 100 AD3d 1463, 1464 [2012] [internalquotation marks omitted]; seePeople v Walker, 50 AD3d 1452, 1452-1453 [2008], lv denied 11NY3d 795 [2008], reconsideration denied 11 NY3d 931 [2009]; People vOlivero, 289 AD2d [*2]1082, 1083 [2001], lvdenied 98 NY2d 639 [2002]). We thus conclude that, "viewing the facts in a lightmost favorable to the People, 'there is a valid line of reasoning and permissible inferencesfrom which a rational [trier of fact] could have found the elements of the crime provedbeyond a reasonable doubt' " (People v Danielson, 9 NY3d 342, 349 [2007]).
Contrary to defendant's further contention, viewing the evidence in light of theelements of the crime in this nonjury trial (see id.), we conclude that the verdict isnot against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]; Peoplev Campbell, 98 AD3d 1310, 1311-1312 [2012]). It is well settled that "[g]reatdeference is to be accorded to the fact[ ]finder's resolution of credibility issues basedupon its superior vantage point and its opportunity to view witnesses, observe demeanorand hear the testimony" (Peoplev Aikey, 94 AD3d 1485, 1486 [2012], lv denied 19 NY3d 956 [2012][internal quotation marks omitted]; see People v Curry, 82 AD3d 1650, 1651 [2011], lvdenied 17 NY3d 805 [2011]). Here, the court specifically credited the victim'stestimony, and we see no basis to disturb that determination (see People v Newman, 87AD3d 1348, 1350 [2011], lv denied 18 NY3d 926 [2012]). The evidenceestablished that the victim called 911 within minutes after the robbery occurred and toldthe dispatcher that she knew the perpetrator. The victim sounded upset in the recordingof the call, and her description of the robbery to the 911 dispatcher was consistent withher account at trial. Additionally, when the victim saw defendant two days after therobbery, she recorded his license plate number and promptly called the police. She thenprovided the police with a statement and a drawing of what the court described as "anunusual looking gun." A gun, which was similar in appearance to the gun described bythe victim, was subsequently recovered by the police in connection with an unrelatedinvestigation and was later linked to defendant through DNA evidence. With respect tothe victim's criminal history, "[t]he fact that [she] had an unsavory background. . . [does] not render [her] testimony incredible" (People v Bernard, 100 AD3d916, 916-917 [2012]; seePeople v Wellborn, 82 AD3d 1657, 1658 [2011], lv denied 17 NY3d803 [2011]). Further, while the victim was the only eyewitness to the robbery, it is wellestablished that "the testimony of one witness can be enough to support a conviction" (People v Calabria, 3 NY3d80, 82 [2004]; see People vJackson, 8 NY3d 869, 870 [2007]; People v Arroyo, 54 NY2d 567, 578[1982], cert denied 456 US 979 [1982]), and several aspects of the victim'saccount were corroborated by the testimony of other witnesses as well as the DNAevidence (see People vHurlbert, 81 AD3d 1430, 1431-1432 [2011], lv denied 16 NY3d 896[2011]).
We also reject the contention of defendant that he was denied effective assistance ofcounsel. Although defense counsel's performance was not perfect, we conclude that,"[v]iewing the evidence, the law and the circumstances of this case, in totality and as ofthe time of the representation, . . . defendant received meaningfulrepresentation" (People vHildreth, 86 AD3d 917, 918 [2011]; see generally People v Baldi, 54NY2d 137, 147 [1981]). Defense counsel, inter alia, opposed the People's application fora buccal swab, made a bail application, vigorously cross-examined the People'switnesses, gave cogent opening and closing statements, moved for a trial order ofdismissal, and moved to set aside the verdict pursuant to CPL 330.30. Through hiscross-examination of the People's witnesses and his opening and closing statements,defense counsel suggested that the victim fabricated the robbery either in an effort toretain the money for herself or in furtherance of a vendetta against defendant, which was"a reasonable trial strategy in the face of strong opposing evidence" (People vPenwarden, 258 AD2d 902, 902 [1999]; see People v Jordan, 99 AD3d 1109, 1110 [2012]). Infurtherance of that strategy, he attacked the victim's veracity and the credibility of thePeople's other witnesses, challenged the significance of the DNA evidence, andquestioned the adequacy of the police investigation into the robbery.
Finally, the sentence is not unduly harsh or severe, particularly given defendant'slengthy criminal history, the serious nature of the crime, and defendant's use of asemi-automatic assault weapon. Present—Centra, J.P., Peradotto, Carni, Sconiersand Whalen, JJ.