| People v Griffin |
| 2014 NY Slip Op 08063 [122 AD3d 1068] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLacedric Griffin, Appellant. |
Salvatore Adamo, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Teresi, J.), rendered June26, 2012 in Albany County, upon a verdict convicting defendant of the crime of robberyin the second degree.
On the evening of April 9, 2011, two men with their faces covered entered aneighborhood grocery store/deli and attacked the owner of the store. During the strugglethat ensued, the victim pulled off the mask worn by one of the perpetrators and the twoassailants exited the store with more than $300, leaving the mask behind. Subsequenttesting of DNA recovered from the mask was linked to defendant and he was arrested.Defendant was ultimately charged in a two-count indictment with robbery in the secondand third degrees. Following a jury trial, defendant was convicted of robbery in thesecond degree, and his subsequent motion to set aside the verdict was denied. SupremeCourt thereafter sentenced defendant, as a second felony offender, to 15 years in prison,to be followed by five years of postrelease supervision. Defendant now appeals, and weaffirm.
Initially, we reject defendant's contention that his conviction is not supported bylegally sufficient evidence and is against the weight of the evidence because the Peoplefailed to establish beyond a reasonable doubt his identity as the masked perpetrator.Robbery in the second degree requires the People to prove that a defendant forcibly stoleproperty while being aided by another person actually present (see Penal Law§ 160.10 [1]; People v Gordon, 23 NY3d 643, 649 [2014]). A personforcibly steals property when "he [or she] uses or threatens the immediate use of physicalforce upon another person for the purpose of . . . [c]ompelling the owner ofsuch property or another person to deliver up the property or to engage in other conductwhich aids in the commission of the larceny" (Penal Law § 160.00 [2];see People v Gordon, 23 NY3d at 649-650; People v Smith, 22 NY3d 1092, 1094 [2014]).
At trial, the People presented evidence that, on the evening in question, two menentered the store, each with his face covered. One of the perpetrators wore a mask andattacked the victim, while the other, who wore a scarf over his face, grabbed the money.As the victim was fighting back, he took hold of the assailant's mask and pulled it off ofhis head. The second perpetrator also fought with the victim, and the two assailants thenleft the store with the money, but without the mask. The police responded to the victim's911 call, documented the victim's statement—which included a description of theassailants' ethnicity and general build—and recovered the mask. However, thevictim did not see either perpetrator's face and was unable to identify defendant invarious photo arrays presented by the police.
To establish defendant's identity as the masked man at trial, the People called as awitness Kristine Robinson, a forensic scientist at the New York State Police ForensicInvestigation Center, who performed DNA testing on the mask. Robinson testified thattesting of the DNA found on the inside of the mask revealed more than one person'sDNA, but that defendant's DNA was consistent with that of a major contributor who left90% of the total DNA on the inside of the mask. Robinson also testified that the lastperson wearing the mask would have deposited more DNA, and ultimately concludedthat the chances of someone other than defendant being the major contributor of DNAwas less than one in 300 billion. The victim also testified that, while he did not see theperpetrator's face, defendant matched the size and height of the perpetrator who wore themask. This evidence was more than sufficient to establish defendant's identity as themask-wearing perpetrator (seePeople v Dearmas, 48 AD3d 1226, 1228 [2008], lv denied 10 NY3d 839[2008]). Thus, viewing the evidence in the light most favorable to the People, we findthat there was legally sufficient proof of each element of the crime of robbery in thesecond degree to sustain defendant's conviction (see People v Gordon, 23 NY3dat 649; People v Bleakley, 69 NY2d 490, 495 [1987]; People v Horton, 106 AD3d1192, 1193-1194 [2013], lv denied 21 NY3d 1016 [2013]; People vValderrama, 285 AD2d 902, 903-904 [2001], lv denied 97 NY2d 659[2001]). In addition, while a different verdict would not have been unreasonable, whenwe view the evidence in a neutral light and accord appropriate deference to the jury'scredibility assessments, we are satisfied that the verdict is in accord with the weight ofthe evidence (see People v Bleakley, 69 NY2d at 495; People v Walker, 117 AD3d1094, 1095-1096 [2014]; People v Pope, 96 AD3d 1231, 1234 [2012], lvdenied 20 NY3d 1064 [2013]; People v Valderrama, 285 AD2d at 904).
We also reject defendant's argument that he was denied the effective assistance ofcounsel. To this end, defendant alleges a single error on counsel's part, namely, counsel'sdecision to elicit testimony from a police detective regarding defendant's prior criminalhistory. "When reviewing a claim of ineffective assistance of counsel, courts must avoidconfusing actual ineffectiveness with mere losing tactics, and a defendant mustdemonstrate the absence of strategic or reasonable explanations for counsel's allegedshortcomings" (People vMcCloud, 121 AD3d 1286, 1291 [2014]; see People vCaban, 5 NY3d 143, 152 [2005]; People v Desmond, 118 AD3d 1131, 1135 [2014]). Here,defense counsel acknowledged at trial that he elicited the challenged testimony as part ofa chosen and purposeful course of action, designed to show that defendant had neverpreviously been convicted of robbery or another violent crime (see generally People v Lane,83 AD3d 1118, 1119 [2011], lv denied 17 NY3d 818 [2011]). In fact,counsel also elected to have the jury view defendant's interview with police, duringwhich defendant discussed his prior felony drug conviction, and requested thatappropriate limiting instructions be given relative to the jury's consideration ofdefendant's criminal history. Further, defendant independently informed Supreme Courton multiple occasions that he consented to the jury seeing the recorded interview,including his statement regarding his prior conviction. The record also confirms that trialcounsel zealously advocated for defendant by, among other things, conducting effectivecross-examination, offering thoughtful opening and closing arguments and makingappropriate trial and posttrial motions. Thus, when we consider counsel's representationas a whole, we find that defendant received meaningful representation (see People vBlake, 24 NY3d 78, 81 [2014]; People v Benevento, 91 NY2d 708, 712 [1998]; People vDesmond, 118 AD3d at 1135-1136).
We are unpersuaded by defendant's further contention that his sentence was harshand excessive and an abuse of Supreme Court's discretion. To the extent argued, therecord does not support a claim that the sentence was vindictive or a punishment fordefendant's assertion of his constitutional right to a trial (see People v Shoemaker, 119AD3d 1073, 1077 [2014]; People v Foulkes, 117 AD3d 1176, 1177 [2014]). Whiledefendant received the maximum permissible sentence (see Penal Law§§ 70.06 [3] [c]; 160.10), it appropriately reflects the court'sconsideration of defendant's extensive criminal history—including a prior drugfelony and a parole violation—his physical attack on the victim and his failure toaccept responsibility for the crime. Thus, we find no abuse of discretion or extraordinarycircumstances that would warrant a reduction of the sentence (see People v Sheppard, 119AD3d 986, 987 [2014]; People v Castellano, 100 AD3d 1256, 1258 [2012], lvdenied 20 NY3d 1096 [2013]). We have examined the remaining arguments raised indefendant's pro se supplemental brief, including his statutory speedy trial claim, and findthem to be lacking in merit.
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.