| People v Summerville |
| 2016 NY Slip Op 02861 [138 AD3d 897] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Randy M. Summerville, Appellant. |
Jillian S. Harrington, Staten Island, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Yael V. Levy and Monica M.C.Leiter of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Honorof, J.), rendered December 11, 2013, convicting him of robbery in the first degree(two counts), robbery in the second degree (two counts), robbery in the third degree (twocounts), and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing (Robbins,J.), of that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is affirmed.
The specific arguments the defendant now makes to support his contention that theSupreme Court erred in denying that branch of his omnibus motion which was tosuppress the gun found at the time of his arrest are unpreserved for appellate review,since they were not raised before the suppression court (see CPL 470.05 [2]; People v Vann, 92 AD3d702 [2012]; People vMyers, 1 AD3d 382, 383 [2003]). In any event, the defendant's arguments arewithout merit (see People v Walker, 300 AD2d 417, 417 [2002]).
The defendant's contention that the evidence was legally insufficient to support thecrimes of which he was convicted is unpreserved for appellate review (see CPL470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620[1983]), we find that it was legally sufficient to establish the defendant's guilt of thesecrimes beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent 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]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt as to these convictionswas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The minordiscrepancies between the description of the defendant given at trial by the People's mainwitness and the description she gave police in a supporting deposition on the day of thesubject robbery did not render her testimony incredible (see [*2]People v Green, 107 AD3d 915, 915 [2013]; People v Wilson, 50 AD3d711, 711 [2008]; People vColon, 42 AD3d 549, 550 [2007]).
The defendant contends that the Supreme Court erred in denying his request toinstruct the jury about a postarrest statement that was written out by a detective,attributed to the defendant although the defendant did not sign the statement, andadmitted into evidence as an admission. Contrary to the defendant's contention, the courtprovidently exercised its discretion in denying this request (see People v Sharlow,185 AD2d 289, 290 [1992]). The defendant's further contention that the courtimprovidently exercised its discretion in denying his request for an expandedidentification charge is also without merit (see People v Patrick, 102 AD3d 892, 892 [2013]; People v Tavarez, 55 AD3d932, 932 [2008]). The instruction given "sufficiently apprised the jury that thereasonable doubt standard applied to identification" (People v Knight, 87 NY2d873, 874 [1995]; see People v Whalen, 59 NY2d 273, 279 [1983]; People vPatrick, 102 AD3d at 892; People v Cox, 54 AD3d 684, 685 [2008]), and the chargeas a whole was otherwise adequate to apprise the jury of the correct legal principles to beapplied to the case (see People v Davis, 250 AD2d 776 [1998]).
The defendant's contention that the verdict was legally repugnant because the juryconvicted him of robbery in the first degree under Penal Law § 160.15 (4)(two counts), but acquitted him of criminal possession of a weapon in the second degreeunder Penal Law § 265.03 (1) (b), is unpreserved for appellate reviewbecause he failed to make this argument before the jury was discharged (see CPL470.05 [2]; People v Satloff, 56 NY2d 745, 746 [1982]; People v Thompson, 119AD3d 966, 967 [2014]). In any event, the contention is without merit (see Peoplev Mabry, 288 AD2d 326 [2001]).
Similarly, the defendant's contention that he was denied the effective assistance ofcounsel is without merit. The defendant failed to demonstrate that his attorney'srepresentation "fell below an objective standard of reasonableness" (Strickland vWashington, 466 US 668, 688 [1984]), or that his attorney failed to provide him with"meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to the People's contention, the defendant's contention that he was penalizedat sentencing for exercising his right to a jury trial is preserved for appellate review(see CPL 470.05 [2]; cf.People v Williams, 127 AD3d 1114, 1118 [2015]; People v Perez, 50 AD3d1161, 1162 [2008]). However, the defendant's contention is without merit (see People v Smith, 131 AD3d1270, 1275 [2015]). "[T]he fact that the sentence imposed after trial was greater thanthe sentence offered during plea negotiations is not, standing alone, an indication that thedefendant was punished for exercising his right to trial" (People v Ray, 100 AD3d933, 934 [2012]; see People v Pena, 50 NY2d 400, 412 [1980]; People v Jimenez, 84 AD3d1268, 1269 [2011]; Peoplev Norris, 34 AD3d 501, 501 [2006]). Moreover, the sentence imposed was notexcessive (see People v Suitte, 90 AD2d 80 [1982]). Eng, P.J., Mastro, Leventhaland Miller, JJ., concur.