| People v Thompson |
| 2017 NY Slip Op 00746 [147 AD3d 1298] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v MarkThompson, Also Known as Mark Day, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Daniel J. Punch of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered August 4, 2014. The judgment convicted defendant, upon a jury verdict, of robbery inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [4]). The conviction arises out of anincident in which defendant and a codefendant robbed the victim at gunpoint and left the scene ina vehicle driven by another codefendant (see People v Evans, 142 AD3d 1291, 1291 [2016]). Following ahigh-speed police chase, defendant and the codefendants fled from the vehicle on foot and wereapprehended. The victim's property was recovered in the vehicle and on defendant's person, andthe victim identified defendant and one of the codefendants in showup identification proceduresbut testified that he was unable to identify them at trial. The weapon used in the robbery wasrecovered along the route traveled by the suspects' vehicle, near several bullets and amagazine.
Defendant contends that Supreme Court failed to rule on the part of his omnibus motionseeking to suppress, inter alia, identification testimony and physical evidence on the ground thathe was unlawfully detained, and that the matter should therefore be remitted for a ruling on thatissue. Although we agree with defendant that the court failed to address the legality of hisdetention in its suppression decision, we conclude that he abandoned that challenge by failing toseek a ruling on that part of his motion and failing to object at trial to testimony about theshowup identification and the recovery of physical evidence from his person (see People v Linder, 114 AD3d1200, 1200-1201 [2014], lv denied 23 NY3d 1022 [2014]; People v Anderson, 52 AD3d1320, 1320-1321 [2008], lv denied 11 NY3d 733 [2008]). In any event, we concludethat the circumstances in which a police officer encountered defendant in the aftermath of thevehicle chase gave rise to at least a reasonable suspicion that defendant had been one of theoccupants of the vehicle and a participant in the robbery (see People v Butler, 81 AD3d 484, 485 [2011], lv denied 16NY3d 893 [2011]; see also People vCarr, 99 AD3d 1173, 1175 [2012], lv denied 20 NY3d 1010 [2013]).
We reject defendant's contention that the court erred in denying his motion for a mistrialwhen the jury initially returned an incomplete verdict with respect to a codefendant. The decisionwhether to grant a mistrial is a matter for the discretion of the trial court (see People vOrtiz, 54 NY2d 288, 292 [1981]; People v Rodriguez, 112 AD3d 1344, 1345 [2013]), and weconclude that the court acted within its discretion in denying the motion and instead directing thejury to resume deliberations (see CPL 310.50 [2]). Contrary to defendant's contentions,the initial verdict was not "tantamount to a hung jury" (see generally People v Stephens, 63 AD3d 624, 624 [2009], lvdenied 13 NY3d 800 [2009]), and the verdict sheet was not confusing, in view of the juryinstructions on the affirmative defense to robbery in the first degree under Penal Law§ 160.15 (4) that the weapon allegedly displayed was not loaded and operable(see generally People v Dombrowski-Bove, 300 AD2d 1122, 1124 [2002]).
By making only a general motion for a trial order of dismissal, defendant failed to preservefor our review his contention that the conviction is not supported by legally sufficient evidence(see People v Gray, 86 NY2d 10, 19 [1995]). In any event, we conclude that the evidence,viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), is legally sufficient to support the conviction (see generally People v Bleakley,69 NY2d 490, 495 [1987]). With respect to the affirmative defense to robbery in the first degree,the presence of ammunition in the vicinity of the weapon when it was recovered supports areasonable inference that the weapon was "loaded at the time of the crime, but unloaded at thetime it was recovered" (People vWilliams, 15 AD3d 244, 245 [2005], lv denied 5 NY3d 771 [2005]; see People v Barrington, 34 AD3d341, 342 [2006], lv denied 8 NY3d 878 [2007]). Viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's further contention that the verdict is against the weight of the evidence (seeBleakley, 69 NY2d at 495), including with respect to the affirmative defense (see People v Brown, 81 AD3d499, 500 [2011], lv denied 17 NY3d 792 [2011]; Williams, 15 AD3d at 245;cf. People v Moody, 278 AD2d 862, 862-863 [2000]). "The challenges defendant raiseson appeal to [the victim's] credibility were matters for the jury to determine, and we see noreason to disturb its verdict" (People vBrooks, 139 AD3d 1391, 1393 [2016]; see People v Vargas, 60 AD3d 1236, 1238-1239 [2009], lvdenied 13 NY3d 750 [2009]).
Contrary to defendant's further contention, his Sixth Amendment right of confrontation wasnot violated by the admission in evidence of statements that a codefendant made to a policeofficer and in recorded jail telephone calls. The statements incriminated defendant, if at all, onlyin light of other evidence produced at trial (see People v Maschio, 117 AD3d 1234, 1235 [2014]; People v Sutton, 71 AD3d 1396,1397 [2010], lv denied 15 NY3d 778 [2010]; cf. People v Johnson, 27 NY3d 60, 67-72 [2016]), and the courtdirected the jury to consider the statements only against the codefendant who made them. Undersuch circumstances, a codefendant is "not 'considered to be a witness "against" adefendant' " within the meaning of the Sixth Amendment (People v Pagan, 87 AD3d 1181,1183 [2011], lv denied 18 NY3d 885 [2012], quoting Richardson v Marsh, 481US 200, 206 [1987]).
Finally, we reject defendant's contention that the court erred in permitting an assistant districtattorney who had recently prosecuted a case against the victim to testify that the victim had notreceived any benefit in that case in exchange for his testimony at defendant's trial. Evenassuming, arguendo, that such testimony constituted bolstering, we conclude that it was properlyadmitted after defendant suggested through cross-examination of the victim that his testimonymay have been motivated by the possibility of favorable treatment in his own case (see People v Santana, 55 AD3d1338, 1339 [2008], lv denied 12 NY3d 762 [2009]; People v Hayes, 226AD2d 1055, 1055-1056 [1996], lv denied 88 NY2d 936 [1996]). Present—Centra,J.P., Peradotto, Carni and Lindley, JJ.