| People v Marcus |
| 2013 NY Slip Op 08101 [112 AD3d 652] |
| December 4, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Marcus, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered December 19, 2007, convicting him of robbery in the first degree,robbery in the second degree (two counts), burglary in the first degree, and menacing inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On October 11, 2006, the defendant, along with two other individuals, encounteredthe complainant in the hallway outside their apartments, punched him, and took $65 fromhis pocket before fleeing. On November 3, 2006, the defendant, along with two otherindividuals, forced their way into the same complainant's apartment, where they held ameat cleaver to his neck and took $100 from his shirt pocket.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that, in connection with the incident onOctober 11, 2006, the evidence was legally sufficient to establish the defendant's guilt ofrobbery in the second degree (see Penal Law § 160.10 [1]; People v Harvey, 76 AD3d605, 606 [2010]; People v Killings, 200 AD2d 636, 637 [1994]; Peoplev Woodham, 158 AD2d 494 [1990]). Regarding the incident on November 3, 2006,the evidence was legally sufficient to establish the defendant's guilt of robbery in the firstdegree (see Penal Law § 160.15 [3]; People v Soares, 80 AD3d 631 [2011]; People vElliot, 298 AD2d 290 [2002]), robbery in the second degree (see Penal Law§ 160.10 [1]; People v Harvey, 76 AD3d at 606; People v Killings,200 AD2d at 637; People v Woodham, 158 AD2d at 494), burglary in the firstdegree (see Penal Law § 140.30 [3]), and menacing in the second degree(see Penal Law § 120.14 [1]). In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]; People vKinard, 96 AD3d 976 [2012]). Contrary to the defendant's contentions,inconsistencies in the complainant's testimony were fully explored at trial and did notrender the complainant's testimony incredible or unworthy of belief (see People v Schouenborg, 42AD3d 473 [2007]; [*2]People v Hinds, 13 AD3d 554 [2004]; Peoplev Ross, 262 AD2d 429 [1999]).
The defendant's contention regarding the trial court's Sandoval ruling (seePeople v Sandoval, 34 NY2d 371 [1974]) is without merit. The court properlyweighed the probative value of the defendant's prior criminal acts in connection with theissue of credibility against the possible prejudice, and reached an appropriate ruling (see People v Ward, 65 AD3d1172, 1173 [2009]; Peoplev Fotiou, 39 AD3d 877, 878 [2007]). The fact that a prior conviction forattempted robbery was similar in nature to the instant offenses did not warrant itspreclusion (see People v Harris, 74 AD3d at 984; People v Hayes, 44 AD3d683 [2007]; People vLewis, 31 AD3d 788, 789 [2006]).
The defendant's contention that certain of the prosecutor's summation remarksdeprived him of a fair trial is unpreserved for appellate review because defense counselfailed to object to those remarks at trial (see People v Siriani, 27 AD3d 670 [2006]). In any event,statements that the complainant had no motive to lie constituted a fair response todefense counsel's summation, which attacked the complainant's credibility (see People v Tiro, 100 AD3d663 [2012]; People vTatum, 39 AD3d 571 [2007]; People v Allien, 302 AD2d 468 [2003];People v Evans, 192 AD2d 671, 672 [1993]; People v Estrella, 156AD2d 710 [1989]; People v Draksin, 145 AD2d 500 [1988]). The otherchallenged remarks did not deprive the defendant of a fair trial (see People vSiriani, 27 AD3d at 670; People v Draksin, 145 AD2d at 501).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Austin, J.P., Sgroi, Cohen and Hinds-Radix, JJ., concur.