| People v Brown |
| 2016 NY Slip Op 08699 [145 AD3d 1549] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAdrian Brown, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Thomas J. Miller, J.),rendered April 24, 2014. The judgment convicted defendant, upon a jury verdict, ofrobbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the second degree (Penal Law § 160.10 [1]). Contraryto defendant's contention, we conclude that County Court properly exercised itsdiscretion at trial in permitting the responding police officers to identify defendant as oneof the perpetrators depicted in the surveillance videos of the crime inasmuch as there wassome basis for concluding that the officers were more likely to identify defendantcorrectly from the videos than was the jury (see People v Montanez, 135 AD3d 528, 528 [2016], lvdenied 27 NY3d 1072 [2016]; People v Magin, 1 AD3d 1024, 1025 [2003]; seegenerally People v Rivera, 259 AD2d 316, 316-317 [1999]). The officers' testimonythus " 'served to aid the jury in making an independent assessment regardingwhether the man in the [video] was indeed the defendant' " (Montanez,135 AD3d at 528). We note that the court properly instructed the jury that the officersmerely provided their opinions that defendant was depicted in the videos and that thejurors were the ultimate finders of fact on the issue of the identity of the perpetrators(see Rivera, 259 AD2d at 317; see generally People v Walker, 96 AD3d 1481, 1482[2012], lv denied 20 NY3d 989 [2012]), and the jury is presumed to havefollowed the court's instructions (see Walker, 96 AD3d at 1482).
We reject defendant's contention that the court erred in denying his request to chargethe lesser included offense of attempted robbery in the second degree. Viewing theevidence in the light most favorable to defendant, we conclude that there is no reasonableview of the evidence to support a finding that he committed the lesser but not the greateroffense (see People v Wells,18 AD3d 482, 483 [2005], lv denied 5 NY3d 811 [2005]). Indeed, given theevidence adduced at trial, "the jury would have to resort to 'sheer speculation' todetermine that defendant and his codefendants attempted to rob the victim but did nottake any property" (People v McCullough, 278 AD2d 915, 916-917 [2000], lvdenied 96 NY2d 803 [2001]).
Contrary to defendant's contention, we conclude that the evidence, including thesurveillance videos and the police officers' testimony, when viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), islegally sufficient to establish defendant's identity, and thus to support the conviction ofthe crime charged (see People v Birmingham, 261 AD2d 942, 942 [1999], lvdenied 93 NY2d 1014 [1999]; see generally People v Bleakley, 69 NY2d490, 495 [1987]). Moreover, viewing the evidence in light of the elements of the crimeas charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict isnot against the weight of the evidence (see generally Bleakley, 69 NY2d at495).
Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J.,Smith, Peradotto, NeMoyer and Scudder, JJ.