| People v Simmons |
| 2014 NY Slip Op 01483 [115 AD3d 1018] |
| March 6, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vNashon Simmons, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Shirley Huang of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered April 22, 2011, upon a verdict convicting defendant of thecrimes of robbery in the second degree (four counts), grand larceny in the fourth degreeand assault in the second degree (two counts).
Defendant was part of a gang known as Black Mask Black Glove and, together withseveral gang members, allegedly participated in assaulting and taking property fromvictim A during the late afternoon of November 14, 2009 near a shopping plaza in theCity of Kingston, Ulster County. Approximately an hour after the first incident and at thesame plaza, defendant and gang members assaulted and removed property from victim B.Later that month on November 29, 2009 in Kingston, victim C's purse was allegedlysnatched from her by defendant as he and another individual rode past her on bicycles.Defendant was charged in a seven-count indictment with four counts of robbery in thesecond degree and two counts of assault in the second degree as a result of the twoincidents occurring on November 14, 2009, as well as one count of grand larceny in thefourth degree for his conduct on November 29, 2009. A jury found him guilty of allseven counts and he received concurrent sentences, the longest of which was 15 years inprison, and five years of postrelease supervision on each of the four robbery counts.Defendant appeals.
Defendant argues that two of the robbery counts, as well as the assault and grandlarceny [*2]counts, were duplicitous. This issue was notraised before County Court and, thus, has not been properly preserved for our review (see People v Becoats, 17NY3d 643, 650-651 [2011], cert denied 566 US —, 132 S Ct 1970[2012]; People v Hayes,104 AD3d 1050, 1053 [2013], lv denied 22 NY3d 1041 [2013]; People v Houghtaling, 79AD3d 1155, 1156 [2010], lv denied 17 NY3d 806 [2011]). In any event, theargument is without merit. The allegations that defendant acted in concert with otherswent to his criminal culpability as an accomplice and did not result in those counts beingduplicitous (see People vPierce, 106 AD3d 1198, 1201 n 2 [2013]; People v Robinson, 53 AD3d 681, 683-684 [2008], lvdenied 11 NY3d 794 [2008]). Each disputed count charged a single offense and theevidence at trial, as well as the instructions to the jury, made plain that each countinvolved a single criminal act (see generally People v Crampton, 45 AD3d 1180, 1182[2007], lv denied 10 NY3d 861 [2008]; People v Ellis, 45 AD3d 1048, 1049 [2007], lvdenied 10 NY3d 764 [2008]).
Next, defendant asserts that the proof at trial was insufficient to support hisconviction on the four robbery counts. Although his general trial motion to dismiss didnot preserve his claim regarding legal insufficiency of the evidence, to the extent thatdefendant raises a weight of the evidence challenge, we will nonetheless consider theproof under our weight of the evidence review (see People v Nisselbeck, 85 AD3d 1206, 1207 n 1 [2011];People v Nesbitt, 69 AD3d1109, 1110-1111 [2010], lv denied 14 NY3d 843 [2010]). Since a differentverdict would not have been unreasonable, "we view the evidence in a neutral light,weigh conflicting testimony and evaluate any reasonable inferences from the evidence inconsidering whether the jury justifiably found defendant guilty beyond a reasonabledoubt" (People vHatchcock, 96 AD3d 1082, 1084 [2012], lv denied 19 NY3d 997[2012]; see People v Bleakley, 69 NY2d 490, 495 [1987]). We accord deferenceto "the jury's ability to view the witnesses and determine credibility" (People v Mateo, 101 AD3d1458, 1459-1460 [2012], lv denied 21 NY3d 913 [2013]; see People v Castellano, 100AD3d 1256, 1258 [2012], lv denied 20 NY3d 1096 [2013]).
Defendant was charged under Penal Law § 160.10 (1) and (2) (a) for each ofthe two alleged robberies. Evidence at trial in support of those counts included, amongother things, testimony from victims A and B, both of whom described being confrontedby a group of young men who struck and took property from each. Victim A suffered afractured nose. Victim B, who had facial bruises and swelling around his eyes, was takenvia ambulance to a hospital for treatment of his injuries. A gang member testified thatone of the goals of the gang was to randomly assault people and sometimes take theirproperty. He stated that defendant was present at both incidents on November 14, 2009and he recalled that defendant took each victim's property, thereafter throwing victim A'sproperty into nearby bushes and victim B's property over a fence. Defendant had givenpolice a recorded statement, which was received into evidence. He acknowledged being agang member and being present at both incidents. He also recalled moving property ofeach victim; however, he indicated that he had no intent to take the property. Defendanttestified at trial and disavowed his recorded statement to police claiming that it was givenunder threat of physical force. He claimed that he was not present at the first incident andhad minimal involvement in the second. The jury was presented with credibility issues,which it resolved against defendant. Deferring to those determinations and uponweighing and considering the proof in the record, we are unpersuaded that the verdictwas against the weight of the evidence.
County Court permitted, after a Ventmiglia hearing, proof regardingdefendant's gang membership. Defendant contends that this ruling constituted reversibleerror. We cannot agree. County Court determined that the evidence was relevant to showdefendant's motive and intent, [*3]and supplied necessarybackground of the events and relationships of those involved in the apparent randomassaults in which only a small amount of property was taken from each victim (see People v Johnson, 106AD3d 1272, 1274 [2013], lv denied 21 NY3d 1043 [2013]; People v Lee, 80 AD3d877, 880 [2011], lv denied 16 NY3d 833 [2011]; People v Oliver, 19 AD3d512, 512-513 [2005], lv denied 5 NY3d 808 [2005]). The probative value ofthe evidence was properly weighed by the court against the potential for prejudice (see People v Reid, 97 AD3d1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v Smith, 63 AD3d1301, 1303 [2009], lv denied 13 NY3d 862 [2009]), and it gave appropriatelimiting instructions regarding the proof to the jury (see People v Collazo, 45 AD3d 899, 901 [2007], lvdenied 9 NY3d 1032 [2008]; People v Craft, 36 AD3d 1145, 1149 [2007], lvdenied 8 NY3d 945 [2007]; People v Faccio, 33 AD3d 1041, 1042 [2006], lvdenied 8 NY3d 845 [2007]).
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.