| People v Toye |
| 2013 NY Slip Op 04369 [107 AD3d 1149] |
| June 13, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LionelToye, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Breslin,J.), rendered February 16, 2011, upon a verdict convicting defendant of the crimes ofrobbery in the first degree and criminal possession of stolen property in the fifth degree.
On an evening in February 2010, defendant approached the victim as she waited fora friend outside of an apartment building in the City of Albany and demanded that shegive him all of her money. When the victim did not immediately comply,defendant—with his hand in his pocket—said to the victim, "Give me yourmoney now or I'm going to shoot you." The victim perceived a "bulky" object indefendant's pocket that, based upon its shape, she believed to be a pistol. Unwilling to"risk [her] life," the victim gave defendant $73 from her wallet. Defendant then fled thescene.
Shortly thereafter, the victim encountered two police officers and, in an effort tolocate the perpetrator, the officers drove around the area with the victim in their patrolvehicle. Within 40 minutes of the robbery, the victim observed defendant on a nearbystreet and identified him as the individual who had robbed her, whereupon the officerstook defendant into custody. As a result, defendant was indicted and charged withrobbery in the first degree and criminal possession of stolen property in the fifth degree.Following a jury trial, defendant was convicted as charged and was sentenced, as apersistent violent felony offender, to a prison term of 25 years [*2]to life. This appeal ensued.
Defendant initially contends that the showup identification was unduly suggestiveand, thus, should have been suppressed. We disagree. A showup identification ispermissible so long as it was "reasonable under the circumstances—that is, whenconducted in close geographic and temporal proximity to the crime—and theprocedure used was not unduly suggestive" (People v Wicks, 73 AD3d 1233, 1235 [2010], lvdenied 15 NY3d 857 [2010] [internal quotation marks and citation omitted]; see People v Diviesti, 101AD3d 1163, 1164 [2012], lv denied 20 NY3d 1097 [2013]; People v Mathis, 60 AD3d1144, 1145-1146 [2009], lv denied 12 NY3d 927 [2009]). Here, the showupwas conducted approximately 40 minutes after the robbery and only moments after thevictim identified defendant as he stood near a bus stop located a few blocks away fromthe scene of the crime. Additionally, our review of the video of the showup fails toreflect that the procedures employed therein were "so unnecessarily suggestive as tocreate a substantial likelihood of misidentification" (People v Mathis, 60 AD3dat 1146 [internal quotation marks and citations omitted]). Accordingly, County Courtproperly denied defendant's motion to suppress (see People v Rivera, 101 AD3d 1478, 1479 [2012], lvdenied 20 NY3d 1103 [2013]).
Defendant next contends that his conviction of robbery in the first degree was notsupported by legally sufficient evidence and was against the weight of the evidence inthat the victim neither perceived nor reasonably believed that defendant possessed afirearm at the time of the robbery. Insofar as is relevant here, "[a] person is guilty ofrobbery in the first degree when he [or she] forcibly steals property and when, in thecourse of the commission of the crime or of immediate flight therefrom, he or [she]. . . [d]isplays what appears to be a . . . firearm" (Penal Law§ 160.15 [4]). Here, the victim testified that defendant approached her, demandedmoney and—with his hand in his pocket—threatened to shoot her if she didnot comply. The victim further testified that she observed a "bulky" item in defendant'spocket that was "shaped like" a pistol and, based upon defendant's threats to her, shebelieved this object to be a firearm. Viewed in the light most favorable to the People (see People v Snyder, 91 AD3d1206, 1210 [2012], lv denied 19 NY3d 968 [2012], cert denied 568US —, 133 S Ct 791 [2012]), the victim's testimony was sufficient to show thatdefendant "conspicuously and consciously conveyed the impression that he was reachingfor something which, under the circumstances, the victim could reasonably conclude wasa firearm" (People v Lopez, 73 NY2d 214, 222 [1989]; see Penal Law§ 160.15 [4]; People vFord, 11 NY3d 875, 878 [2008]; People v Perez, 93 AD3d 1032, 1035 [2012], lvdenied 19 NY3d 1000 [2012]; People v Boland, 89 AD3d 1144, 1146 [2011], lvdenied 18 NY3d 955 [2012]).
As for defendant's assertion that the verdict is against the weight of the evidence, wedisagree. The victim identified defendant in court as the individual who robbed her andtestified that defendant had taken $73 from her. After defendant was arrested, $73 wasfound in his wallet. Moreover, the victim's description of the perpetrator's clothing andappearance—including the fact that she could smell alcohol on hisbreath—was consistent with defendant's clothing and appearance at the time hewas apprehended. Although defense counsel suggested an alternate explanation for themoney found in defendant's wallet, and the video from the police patrol vehicle reflectedsome ambivalence on the part of the victim as to whether defendant actually possessed agun, these issues were fully explored at trial, and any conflicts in the evidence presenteda credibility issue for the jury to resolve (see People v Moyer, 75 AD3d 1004, 1006 [2010]; People v Mitchell, 57 AD3d1308, 1309 [2008]). Thus, while a different verdict would not have beenunreasonable, upon viewing the evidence in a neutral light and according [*3]appropriate deference to the jury's interpretation thereof, wefind that the conviction of robbery in the first degree was not against the weight of theevidence (see People v Boland, 89 AD3d at 1146; People v Allen, 87 AD3d450, 450-451 [2011], lv denied 17 NY3d 951 [2011]).[FN*]
Nor do we find merit to defendant's claim of ineffective assistance of counsel.Initially, to the extent that defendant cites deficiencies in counsel's performance relativeto the grand jury proceeding or the initial plea offer tendered in this matter, these claimsinvolve matters outside the record and, as such, are more properly the subject of a CPLarticle 440 motion (see People vBahr, 96 AD3d 1165, 1166 [2012], lv denied 19 NY3d 1024 [2012];People v Moyer, 75 AD3d at 1006). As to the balance of defendant's claim, adefendant will be deemed to have received the effective assistance of counsel "[s]o longas the evidence, the law, and the circumstances of a particular case, viewed in totality andas of the time of the representation, reveal that the attorney provided meaningfulrepresentation" (People v Bahr, 96 AD3d at 1166 [internal quotation marks andcitations omitted]; accordPeople v Battease, 74 AD3d 1571, 1575 [2010], lv denied 15 NY3d 849[2010]). Here, the record reveals that counsel presented a plausible defense, offeredintelligent and articulate opening and closing statements, effectively cross-examined thePeople's witnesses and made appropriate objections. The record further reflects thatcounsel discussed the possibility of charging the jury with the affirmative defense setforth in Penal Law § 160.15 (4), as well as the lesser included offense of robberyin the second degree, and that defendant, in turn, declined to make requests to charge onthose issues (see n, supra). Under these circumstances, we are satisfiedthat defendant received meaningful representation (see People v McRobbie, 97 AD3d 970, 972 [2012], lvdenied 20 NY3d 934 [2012]; People v Pinkney, 90 AD3d 1313, 1317 [2011]; Peoplev Battease, 74 AD3d at 1575-1576).
Finally, we are unpersuaded that defendant's sentence is harsh or excessive. In viewof the serious nature of the crime and defendant's extensive criminal history, we find noabuse of discretion or extraordinary circumstances that would warrant disturbing thesentence imposed (see People vCastellano, 100 AD3d 1256, 1258 [2012], lv denied 20 NY3d 1096[2013]; People v Boland, 89 AD3d at 1146).
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: To the extent thatdefendant argues that his conviction should be reduced to robbery in the second degree,we note that defendant expressly declined to request a jury charge as to either theaffirmative defense set forth in Penal Law § 160.15 (4) or the lesser includedoffense of robbery in the second degree. Accordingly, this issue is unpreserved for ourreview (see People vFulwood, 86 AD3d 809, 811 [2011], lv denied 17 NY3d 952 [2011]; People v Williams, 15 AD3d244, 245 [2005], lv denied 5 NY3d 771 [2005]; People v Winslow,153 AD2d 965, 968 [1989]), and we discern no circumstances that would warrant theexercise of our interest of justice jurisdiction.