| People v Robinson |
| 2013 NY Slip Op 01967 [104 AD3d 1312] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vCordell A. Robinson, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered June 25, 2009. The judgment convicted defendant, upon a jury verdict, ofrobbery in the second degree (two counts) and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2][a]) and one count of assault in the second degree (§ 120.05 [6]). According to theevidence presented at trial, two passengers in a vehicle, one of whom was defendant,exited the vehicle, approached the victim, a pedestrian, and knocked her cell phone fromher hand. In addition, one of them forcibly ripped her purse from her arm, injuring her.The victim observed her two assailants struggle to re-enter the backseat of the vehicle,and she also observed three other individuals in the vehicle and memorized the licenseplate. Within minutes, she called the police and described the vehicle and its occupants.Within an hour, the police stopped the vehicle and conducted a showup identificationprocedure. The victim identified defendant and another person as the individuals whostole her purse, and she also identified the driver of the vehicle. Defendant and the driverwere eventually tried jointly and found guilty of all counts.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])."Although a different result would not have been unreasonable, the jury was in the bestposition to assess the credibility of the witnesses and, on this record, it cannot be said thatthe jury failed to give the evidence the weight it should be accorded" (People v Orta, 12 AD3d1147, 1147 [2004], lv denied 4 NY3d 801 [2005]).
We reject defendant's further contention that County Court erred in denying hisrequest that the court require two potential defense witnesses to appear before it to asserttheir Fifth Amendment rights. The court was informed by counsel for those two potentialwitnesses, who were occupants of the vehicle, that they would invoke their FifthAmendment rights if called to testify. Thus, although the customary practice is to have awitness appear with counsel to enable [*2]the court tomake an inquiry on the record outside the presence of the jury (see e.g. People vBradford, 300 AD2d 685, 686 [2002], lv denied 99 NY2d 612 [2003]), herethere was no reason to bring the witnesses before the court for such an inquiry (seegenerally People v Savinon, 100 NY2d 192, 199 n 7 [2003]; People vMacana, 84 NY2d 173, 178-179 [1994]).
We further reject defendant's contention that the court erred in denying his request tocall three additional witnesses to testify regarding a declaration against penal interestmade by one of those two potential defense witnesses, i.e., a statement in which thatperson admitted that he was in fact the purse snatcher. Contrary to defendant'scontention, People vConcepcion (17 NY3d 192 [2011]) does not constrain our review of this issueinasmuch as the court's reasoning for its rulings regarding those three witnesses wasbroader than defendant contends. We conclude that the court properly exercised itsdiscretion in refusing to allow defendant to call those three witnesses, having permittedtwo other witnesses to testify regarding that declaration against penal interest; such adetermination "involves a delicate balance of diverse factors and is entrusted to the soundjudgment of the trial court, which is aptly suited to weigh the circumstances surroundingthe declaration and the evidence used to bolster its reliability" (People v Settles,46 NY2d 154, 169 [1978]).
Defendant failed to preserve for our review his contention that the conviction is notsupported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19[1995]), and in any event that contention lacks merit. We conclude that "there is [a] validline of reasoning and permissible inferences which could lead a rational person to theconclusion reached by the jury on the basis of the evidence at trial" (Bleakley, 69NY2d at 495). Contrary to defendant's further contention, the court did not err inresponding to a note from the jury during its deliberations. The court's response"addressed the jury's inquiry and was a proper statement of the law" (People v Banks, 74 AD3d1783, 1784 [2010], lv denied 17 NY3d 857 [2011]). Additionally, the courtdid not err in denying defendant's request for a cross-racial identification charge (see generally People vGerman, 45 AD3d 861, 861 [2007], lv denied 9 NY3d 1034 [2008]).
Finally, defendant failed to preserve for our review his contention that he waspenalized for exercising his right to a jury trial inasmuch as he failed to raise thatcontention at the time of sentencing (see People v Motzer, 96 AD3d 1635, 1636 [2012], lvdenied 19 NY3d 1104 [2012]; People v Stubinger, 87 AD3d 1316, 1317 [2011], lvdenied 18 NY3d 862 [2011]). In any event, the record does not support defendant'scontention (see Stubinger, 87 AD3d at 1317). Present—Scudder, P.J.,Fahey, Sconiers, Valentino and Martoche, JJ.