| People v Arroyo |
| 2015 NY Slip Op 04138 [128 AD3d 843] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Arroyo, Appellant. |
Marianne Karas, Thornwood, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco,Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Neary, J.), rendered November 6, 2013, convicting him of robbery in the first degreeand criminal possession of stolen property in the fifth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel. Defense counsel made appropriate pretrial motions resulting in thetrial court conducting Wade, Huntley, Mapp, and Dunawayhearings (see United States v Wade, 388 US 218 [1967]; People vHuntley, 15 NY2d 72 [1965]; Mapp v Ohio, 367 US 643 [1961];Dunaway v New York, 442 US 200 [1979]), made a coherent and well-reasonedopening statement, vigorously cross-examined the People's witnesses, made awell-argued trial motion to dismiss at the close of the People's case, presented a defenseof misidentification, and made a cogent closing statement (see People v Jenkins, 103AD3d 753 [2013]). Viewing the record in its entirety, the defendant receivedmeaningful representation (see People v Benevento, 91 NY2d 708 [1998];People v Rivera, 71 NY2d 705 [1988]; People v Greene, 110 AD3d 827, 828 [2013]).
The defendant did not preserve for appellate review his contention that the trial courterred, with respect to the conviction of robbery in the first degree, by not charging thejury with the lesser-included offense of robbery in the second degree, since counselneither requested the charge nor objected to its absence (see People v Miaram, 97 AD3d606, 607 [2012]). In any event, no basis existed for the court to give such a charge,since no evidence presented at the trial would have allowed the jury to find, by apreponderance of the evidence, that the object displayed was not a loaded weaponcapable of producing death or other serious physical injury (see People v Miaram,97 AD3d at 607; Penal Law § 160.15 [4]).
The defendant contends that the trial court's response to a jury note regarding thedefinition of robbery in the first degree with respect to the failure of the police to recovera gun had the effect of directing a verdict of guilt on the count of robbery in the firstdegree. This contention is unpreserved for appellate review (see CPL 470.05 [2]).In any event, the court's response was appropriate and the jury is presumed to havefollowed the court's instruction to consider only the [*2]evidence when judging the facts of the case (see People v Tohom, 109AD3d 253, 268 [2013]).
The defendant argues that the testimony of the People's police witnesses regardingthe complainant's description of the perpetrator and of the commission of the crime andits aftermath constituted improper bolstering and inadmissible hearsay. However, thesecontentions are unpreserved for appellate review because the defendant did not object tothe testimony (see People vSpeaks, 124 AD3d 689 [2015], lv granted 24 NY3d 1222 [2015]). Inany event, these contentions are without merit. Here, as in People v Smith (22 NY3d462, 464 [2013]), the officers' testimony regarding the complainant's description ofthe robber was admissible. In addition, the officers' testimony regarding the complainingwitness's description of the robber, as well as his account of the robbery, was properlyadmitted for the nonhearsay purpose of establishing the reasons behind the detective'sactions, and to complete the narrative of events leading to the defendant's arrest (seePeople v Speaks, 124 AD3d at 692; People v Ragsdale, 68 AD3d 897, 897-898 [2009]). Therecord does not support the defendant's contention that the prosecutor stated or impliedduring summation that the jury could find that the perpetrator had a gun based on thecomplainant's statements to police witnesses.
Contrary to the defendant's contention, the trial court's Sandoval ruling(see People v Sandoval, 34 NY2d 371 [1974]), constituted a provident exerciseof discretion (see People v Hayes, 97 NY2d 203, 207-208 [2002]; People v Smith, 63 AD3d1301, 1303-1304 [2009]; People v McLaurin, 33 AD3d 819, 820 [2006]). Dillon,J.P., Dickerson, Duffy and Barros, JJ., concur.