| People v Cruz |
| 2017 NY Slip Op 05476 [152 AD3d 822] |
| July 6, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v EdwinCruz, Appellant. |
Catherine A. Barber, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.),rendered January 15, 2015, upon a verdict convicting defendant of the crimes of robbery in thefirst degree, robbery in the second degree and assault in the second degree, and (2) bypermission, from an order of said court, entered January 19, 2016, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
The victim was on Lark Street in the City of Albany in the early morning hours of August 11,2013 and, while his friends were in a nearby pizzeria, he removed his wallet from his backpocket and placed it on a stoop where he sat to smoke a cigarette. Defendant, a passerby,bummed a cigarette off of the victim and sat down next to him. The two men chatted for a fewminutes and, when defendant got up to leave, the victim realized that his wallet was missing. Thevictim then engaged in a brief verbal exchange with defendant, at the end of which defendantproduced a box cutter from his pocket and slashed the victim in the face. Defendant was quicklyapprehended by police officers, and a search of the area where he was stopped recovered a boxcutter and the victim's wallet.
Defendant was thereafter charged in an indictment with robbery in the first degree, robbery inthe second degree and assault in the second degree, and was convicted as charged following ajury trial. County Court sentenced defendant to an aggregate prison term of 17 years to befollowed by postrelease supervision of five years, and later denied his CPL 440.10 motion [*2]to vacate the judgment of conviction without a hearing. Defendantnow appeals from the judgment of conviction and, by permission, from the denial of his CPL440.10 motion.
Defendant argues that the conviction was not supported by legally sufficient evidence, butneither his general motion for a trial order of dismissal (see People v Hawkins, 11 NY3d 484, 492 [2008]; People vGray, 86 NY2d 10, 20 [1995]) nor his presentence motion to set aside the verdict (see People v Jones, 79 AD3d1244, 1246 [2010], lv denied 16 NY3d 832 [2011]) preserved that issue for ourreview. We will nevertheless evaluate whether the elements of the charged crimes were provenbeyond a reasonable doubt upon our weight of the evidence review where, if "a different verdictwould not have been unreasonable, we weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony" (People v Scippio, 144 AD3d 1184,1185 [2016] [internal quotation marks and citations omitted], lv denied 28 NY3d 1150[2017]; see People v Kancharla, 23NY3d 294, 302-303 [2014]).
Here, the victim testified to his account of the incident as well as the injuries he sustainedwhen trying to retrieve the wallet from defendant, and the officers involved related how theyapprehended defendant and found the victim's wallet and a box cutter in the same area.Defendant denied stealing the wallet in his testimony and stated that he only slashed the victimafter being confronted in a threatening manner about the alleged theft. Assuming withoutdeciding that a different verdict was a reasonable possibility, the jury rejected defendant'saccount and found that he had indeed stolen the wallet and injured the victim with a box cutter inan effort to retain it. According "great deference" to that credibility determination, we find thatthe verdict was supported by the weight of the evidence (People v Bleakley, 69 NY2d490, 495 [1987]; see People vWilkerson, 140 AD3d 1297, 1301-1303 [2016], lv denied 28 NY3d 938 [2016];People v Murphy, 66 AD3d1234, 1235-1236 [2009]).
Contrary to defendant's further contention, his conviction for assault in the second degree(see Penal Law § 120.05 [2]) need not be dismissed as an inclusoryconcurrent count of his conviction for either robbery in the first degree (see Penal Law§ 160.15 [3]) or robbery in the second degree (see Penal Law§ 160.10 [2] [a]). A crime cannot be a lesser included offense of a greater oneunless, when assessing the elements of the two crimes, it is "theoretically impossible to committhe greater crime without at the same time committing the lesser" (People v Green, 56NY2d 427, 430 [1982]; see CPL 1.20 [37]). It is indeed "theoretically possible to use orthreaten the immediate use of a dangerous instrument without also causing physical injury" so asto commit robbery in the first degree but not assault in the second degree (People vSolomon, 141 AD2d 579, 580 [1988], lv denied 72 NY2d 913 [1988]). Moreover,unlike a charge of assault in the second degree premised upon the attack occurring in the courseof another felony (see Penal Law § 120.05 [6]; People v Perez, 93 AD3d 1032,1039 [2012], lv denied 19 NY3d 1000 [2012]), "it is theoretically possible to havecommitted all of the elements of robbery as set forth in Penal Law § 160.10 (2) (a)without using a dangerous instrument [or deadly weapon], and thus without committing assaultin the second degree as set forth in Penal Law § 120.05 (2)" (People vMiller, 189 AD2d 1001, 1002 [1993], lv denied 81 NY2d 889 [1993]).
Defendant's assertion that the People withheld a recording of a police interview with a manaccompanying him at the time of the incident finds no "support in the record, and his speculationthat such evidence exists is insufficient to establish a Brady violation" (People v Chaplin, 134 AD3d 1148,1152 [2015], lv denied 27 NY3d 1067 [2016]; People v Parkinson, 268 AD2d792, 793 [2000], lv denied 95 NY2d 801 [2000]). Further, defendant's reliance upon thedisparity between the aggregate sentence imposed at trial and the sentences offered during pleanegotiations, without more, does not demonstrate that he was punished for going to trial so [*3]as to warrant a reduction in that sentence (see People v Cochran, 140 AD3d1198, 1201 [2016], lv denied 28 NY3d 970 [2016]; People v Acevedo, 118 AD3d1103, 1108 [2014], lv denied 26 NY3d 925 [2015]). The remaining argumentsadvanced on defendant's direct appeal, including his claim that the record demonstrates that hereceived the ineffective assistance of counsel, have been reviewed and are unpersuasive.
Turning to the appeal from the denial of defendant's CPL article 440 motion, while most ofthe arguments made in that motion were properly rejected by County Court on the papers, weagree with defendant that he alleged certain "non-record facts" that "are material and, ifestablished, . . . would entitle him to relief" so as to warrant a hearing (People v Mosley, 121 AD3d 1169,1174 [2014], lv denied 24 NY3d 1086 [2014]; see People v Satterfield, 66 NY2d796, 799 [1985]). Defendant, in particular, averred that defense counsel rendered ineffectiveassistance by failing to engage in needed discovery related to his claim that he did not take thevictim's wallet. The trial evidence established that the incident occurred in an area surrounded bybusinesses with security cameras installed and that defense counsel was aware of this fact.Defense counsel, according to defendant, did not investigate whether those security camerascaptured the incident on video prior to trial and did not obtain the footage to determine whether itundercut the victim's claim that defendant had robbed him. Defendant further noted that he waswith another man when the incident occurred and alleged that defense counsel failed to interviewthat individual to learn whether his testimony would be helpful to the defense. If defense counselfailed without reason to investigate known proof that had the potential to corroborate defendant'saccount of events, it "may have amounted to less than meaningful representation" (People v Deyo, 82 AD3d 1503,1505 [2011], lv denied 17 NY3d 815 [2011]; see e.g. Matter of John JJ., 298AD2d 634, 636 [2002]). Inasmuch as those questions "cannot be determined on the motionpapers[,] . . . we remit for a hearing where proof can be presented on" them(People v Deyo, 82 AD3d at 1506).
McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Ordered that the order is reversed, on the law, and matter remitted to the County Court ofAlbany County for further proceedings not inconsistent with this Court's decision.