| People v Ferrer |
| 2014 NY Slip Op 00387 [113 AD3d 964] |
| January 23, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRodney J. Ferrer, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Garry, J. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedJuly 7, 2009 in Ulster County, upon a verdict convicting defendant of the crimes ofrobbery in the first degree and criminal possession of a weapon in the third degree.
Following a jury trial, defendant was convicted of robbery in the first degree andcriminal possession of a weapon in the third degree. He was sentenced, as a secondfelony offender, to concurrent prison terms of 14 years followed by five years ofpostrelease supervision on the robbery conviction and 3½ to 7 years on the weaponconviction. On this appeal, he first argues that the verdict is against the weight of theevidence. At trial, the victim testified that as he was walking up Cedar Street towardBroadway in the City of Kingston, Ulster County, defendant approached and asked to usehis cell phone. As he returned the phone to the victim, defendant pulled a knife and heldit to the victim's stomach, threatening to stab or cut him and demanding the victim'smoney. When the victim denied having any money, defendant searched his pockets, thenurged the victim down the street to a darker area, where he again threatened the victimwith the knife and searched his pockets. The victim failed to produce any money, butupon defendant's direction, he gave defendant his cell phone and shirt. Defendant thenordered the victim to walk away without looking back. The victim did as instructed, andthen proceeded to a nearby restaurant owned by his aunt and uncle. He testified that hedid not [*2]tell them about the robbery because his aunthas a weak heart, but instead called the police when he got home a short time later. Thevictim's version of events was supported to some extent by the testimony of a woman thatdefendant was staying with at the time of the robbery. She testified that defendant was inpossession of a cell phone matching the description of the victim's phone, and thatdefendant told her "he had robbed a Puerto Rican kid for it."[FN*]
Testifying on his own behalf, defendant offered a different version of events,claiming that he was essentially an innocent bystander during a fight between the victimand another man over a soured drug deal. Defendant claimed that the victim lost his shirtwhen it was torn from him during the fight. As for the cell phone, defendant testified thatthe victim dropped it on the ground during the fight, the other man retrieved it, anddefendant purchased it from that man. Given that the verdict turned on the comparativecredibility of the victim and defendant, a different verdict would not have beenunreasonable; however, upon reviewing the evidence in a neutral light and accordingdeference to the jury's ability to observe the witnesses and assess their credibility, weconclude that the verdict is not contrary to the weight of the evidence (see People v Danielson, 9NY3d 342, 348 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Olson, 110 AD3d1373, 1374 [2013]).
Equally unpersuasive is defendant's argument that his 14-year sentence for hisrobbery conviction is harsh and excessive and should be reduced in the interest of justice(see CPL 470.15 [3] [c]; [6] [b]; People v Vargas, 72 AD3d 1114, 1120 [2010], lvdenied 15 NY3d 758 [2010]). Given his lengthy criminal history (see People v Elliot, 57 AD3d1095, 1097-1098 [2008], lv denied 12 NY3d 783 [2009]), including anassault charge for which he was incarcerated at the time of trial, as well as other violentcrimes, the sentence was not an abuse of discretion (see People v Ardrey, 92 AD3d 967, 971 [2012], lvdenied 19 NY3d 861 [2012]; People v Andrews, 78 AD3d 1229, 1233 [2010], lvdenied 16 NY3d 827 [2011]). Further, neither defendant's alleged physical conditionnor his childhood history of parental neglect here present extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People v Bonelli, 41 AD3d972, 974 [2007], lv denied 9 NY3d 921 [2007]).
Peters, P.J., Rose and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The victim was ofSalvadoran descent.