| People v Fort |
| 2017 NY Slip Op 00044 [146 AD3d 1017] |
| January 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Antwoine Fort, Appellant. |
Perfetti Law Office, Cortland (Patrick A. Perfetti of counsel), for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel),for respondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered August 12, 2013, upon a verdict convicting defendant of the crime ofattempted robbery in the first degree.
Defendant was charged by indictment with robbery in the first degree based uponallegations that he had threatened a taxicab driver (hereinafter the victim) with a weapon,demanded money and, when the victim fled from the taxicab, stole personal property thatthe victim had left behind. The victim later identified defendant from a photo array and ina lineup. Following a jury trial, defendant was acquitted of robbery in the first degree,but convicted of the lesser included offense of attempted robbery in the first degree. Hissubsequent motion to set aside the verdict was denied (see CPL 330.30 [1], [3]),and he now appeals.
There is no merit to defendant's contention that County Court abused its discretion bydenying his pre-lineup request to employ a sequential double-blind lineup procedure (see People v Washington, 40AD3d 1136, 1136 [2007], lv denied 9 NY3d 883 [2007]; People v McLaughlin, 8 AD3d146, 147 [2004], lvs denied 3 NY3d 678, 741 [2004]; People v Robinson, 8 AD3d95, 96 [2004], lv denied 3 NY3d 742 [2004]). Notably, he does not arguethat the lineup procedure used was unduly suggestive (see generally People vDelamota, 18 NY3d 107, 117-118 [2011]).
We also reject defendant's contention that the People failed to lay a properevidentiary foundation for the admission of exhibits that were created from surveillancefootage in front of [*2]the bar where defendant firstentered the victim's taxicab. A detective, an investigator and two employees from the bartestified in detail about the surveillance system, the utilization of the system to create aflash drive and video disc, and the printing of a series of still photographs from thevideo. Accordingly, the exhibits were properly admitted into evidence (see People v Cabrera, 137AD3d 707, 707-708 [2016], lv denied 27 NY3d 1129 [2016]; People v Junior, 119 AD3d1228, 1231 [2014], lv denied 24 NY3d 1044 [2014]; see also People vPatterson, 93 NY2d 80, 84 [1999]).
Nor can we agree with the argument that County Court erred in submitting thecharge of attempted robbery in the first degree to the jury as a lesser included offense andthat, instead, the court should have submitted petit larceny. Inasmuch as both crimes arelesser included offenses of robbery in the first degree (see People v King, 48 AD3d1177, 1178 [2008]; People v Gilliam, 300 AD2d 701, 702 [2002], lvdenied 99 NY2d 628 [2003]), we must consider whether " 'there is areasonable view of the evidence which would support a finding that . . .defendant committed such lesser offense but did not commit the greater' " (People v Colville, 20 NY3d20, 31 [2012], quoting CPL 300.50 [1]; see People v Green, 141 AD3d 1036, 1041 [2016], lvdenied 28 NY3d 1072 [2016]). Beginning with the attempt charge, the recordconfirms that there was a reasonable view of the evidence that would suggest thatdefendant did not steal the victim's personal property from the taxicab and, instead, onlydemanded money from the victim, without success (see Penal Law§§ 110.00, 160.15 [4]; People v Felix, 56 AD3d 796, 797 [2008], lvdenied 12 NY3d 816 [2009]). Turning to petit larceny, we agree with County Courtthat there was no reasonable view of the evidence that would support a finding thatdefendant committed petit larceny, but not robbery in the first degree. The victim'suncontroverted testimony established that defendant displayed what appeared to be afirearm and "there was no reason for the jury to selectively discredit only that portion ofhis testimony" (People v James, 47 AD3d 506, 507 [2008], affd 11 NY3d886 [2008]; see People vMonroe, 30 AD3d 616, 617-618 [2006], lv denied 7 NY3d 815 [2006];compare People v Smith, 214 AD2d 971, 972 [1995], lv denied 86 NY2d847 [1995]).
Defendant's remaining contention that County Court erred in denying his motion toset aside the verdict based upon newly discovered evidence is presented for the first timeon appeal as a purported Brady violation and is, therefore, unpreserved for ourreview (see People vThompson, 54 AD3d 975, 976 [2008], lv denied 11 NY3d 858 [2008];People v Kearney, 39 AD3d964, 966 [2007], lv denied 9 NY3d 846 [2007]). Were we to review it, wewould find that no Brady violation occurred because the evidence at issue wasimmaterial (see People vAnderson, 118 AD3d 1138, 1142 [2014], lv denied 24 NY3d 1117[2015]; see generally People vHayes, 17 NY3d 46, 50 [2011], cert denied 565 US 1095 [2011]).
Egan Jr., J.P., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.