| People v Thomas |
| 2018 NY Slip Op 00723 [158 AD3d 1135] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Jyquale J.Thomas, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedDecember 19, 2012. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst 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]). We reject defendant'scontention that a new trial is warranted because the People failed to disclose Bradymaterial in a timely manner. Even assuming, arguendo, that the victim's pretrial expression ofconcern about possible negative consequences of not providing an in-court identification ofdefendant for the People constituted material favorable to defendant that was withheld until aftercommencement of the trial (see generally People v Barnes, 200 AD2d 751, 751-752 [2dDept 1994], lv denied 83 NY2d 849 [1994]), we conclude that defendant's constitutionalright to a fair trial was not violated (seegenerally People v Garrett, 23 NY3d 878, 884-885 [2014], rearg denied 25NY3d 1215 [2015]). "Untimely or delayed disclosure will not prejudice a defendant or deprivehim or her of a fair trial where[, as here,] the defense is provided with 'a meaningful opportunityto use the allegedly exculpatory [or impeaching] material to cross-examine the People's witnessesor as evidence during his [or her] case' " (People v Carter, 131 AD3d 717, 718-719 [3d Dept 2015], lvdenied 26 NY3d 1007 [2015], quoting People v Cortijo, 70 NY2d 868, 870 [1987];see People v Jackson, 281 AD2d 906, 907 [4th Dept 2001], lv denied 96 NY2d920 [2001]). Contrary to defendant's contention, there is no "reasonable possibility that theoutcome of the trial would have differed had the [information] been [disclosed sooner]"(People v Scott, 88 NY2d 888, 891 [1996]; see People v Milton, 90 AD3d 1636, 1637 [4th Dept 2011], lvdenied 18 NY3d 996 [2012]).
Defendant also contends that the evidence is legally insufficient to establish his identity asthe robber. We reject that contention. The evidence at trial established that the victim waswalking home from a bus stop at night in his neighborhood when, after turning around a coupletimes and seeing someone in the area, the victim heard footsteps directly behind him, turnedaround again, and saw a man pointing what appeared to be a shotgun at his head. The robberdemanded money, and the victim handed him money and a bus pass. Although the victim did notidentify defendant as the robber, the People adduced circumstantial evidence of guilt, includingdefendant's statement to a fellow jail inmate that he was present for the robbery, evidence thatdefendant was connected to a vehicle that the victim recognized in the area around the time of therobbery, and evidence that both defendant and the victim were at an office building the followingday when the victim observed a person who looked like the robber. There was also directevidence of guilt, inasmuch as defendant admitted to a second inmate that he committed therobbery (see People v Heck, 103AD3d 1140, 1141 [4th Dept 2013], lv denied 21 NY3d 1074 [2013]; People v Williams, 45 AD3d 905,905 [3d Dept 2007], lv denied 10 NY3d 818 [2008]). In addition, the testimony thatdefendant requested that the second inmate kill the victim to prevent him from testifying at trialis evidence of consciousness of guilt and further supports the jury's finding of guilt (seegenerally People v Pawlowski, 116 AD2d 985, 986 [4th Dept 1986], lv denied 67NY2d 948 [1986]). Based on the foregoing, we conclude that the direct and circumstantialevidence adduced at trial, viewed in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), provides a "valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury" (People vBleakley, 69 NY2d 490, 495 [1987]).
Contrary to defendant's further contention, although a different result would not have beenunreasonable (see People vDanielson, 9 NY3d 342, 348 [2007]; Bleakley, 69 NY2d at 495), we concludethat, viewing the evidence in light of the elements of the crime as charged to the jury (seeDanielson, 9 NY3d at 349), the verdict is not against the weight of the evidence (seegenerally Bleakley, 69 NY2d at 495; People v Zacharek, 170 AD2d 1008, 1008 [4thDept 1991], lv denied 77 NY2d 969 [1991]). It is well settled that "[r]esolution of issuesof credibility, as well as the weight to be accorded to the evidence presented, are primarilyquestions to be determined by the jury" (People v Witherspoon, 66 AD3d 1456, 1457 [4th Dept 2009], lvdenied 13 NY3d 942 [2010] [internal quotation marks omitted]), and we perceive no reasonto disturb the jury's resolution of those issues here. Contrary to defendant's contention, "thetestimony of the People's witnesses was not incredible as a matter of law, i.e., it was notimpossible of belief because it is manifestly untrue, physically impossible, contrary toexperience, or self-contradictory" (People v Resto, 147 AD3d 1331, 1334 [4th Dept 2017][internalquotation marks omitted] , lv denied 29 NY3d 1000 [2017], deniedreconsideration 29 NY3d 1094 [2017]). The testimony of the People's witnesses "was notrendered incredible as a matter of law . . . by the fact that [several] of them hadcriminal histories and received favorable treatment in exchange for their testimony"(id.).
We reject defendant's contention that Supreme Court abused its discretion in permitting oneof the People's witnesses to testify about defendant's connection to the vehicle and his presence inthe office building inasmuch as that testimony was relevant to the central issue in the case, i.e.,identity, and the probative value of that testimony was not " 'substantially outweighed bythe potential for prejudice' " (People v Harris, 26 NY3d 1, 5 [2015]; see People v Inman, 134 AD3d1434, 1436 [4th Dept 2015], lv denied 27 NY3d 999 [2016]).
We also reject defendant's contention that he was deprived of a fair trial by prosecutorialmisconduct on summation. Contrary to defendant's contention, "[t]he prosecutor did notimproperly vouch for the credibility of a prosecution witness on summation, because '[a]nargument by counsel on summation, based on the record evidence and reasonable inferencesdrawn therefrom, that his or her witnesses have testified truthfully is not vouching for theircredibility' " (People vWomack, 151 AD3d 1754, 1756 [4th Dept 2017], lv denied 29 NY3d 1136[2017]; see People v Bailey, 58 NY2d 272, 277 [1983]). Furthermore, "the prosecutor'sclosing statement must be evaluated in light of the defense summation, which put into issue the[witnesses'] character and credibility and justified the People's response" (People v Halm,81 NY2d 819, 821 [1993]) and, here, we conclude that "the prosecutor's comments at issue onsummation were 'a fair response to defense counsel's summation and did not exceed the boundsof legitimate advocacy' " (People v Carrasquillo-Fuentes, 142 AD3d 1335, 1338 [4th Dept2016], lv denied 28 NY3d 1143 [2017]; see Womack, 151 AD3d at 1756).
We reject defendant's contention that the court abused its discretion in denying his motion forrecusal from further proceedings after the court, over defendant's objection, spoke privately withthe jurors following the verdict. Where, as here, "recusal is sought based upon 'impropriety asdistinguished from legal disqualification, the judge . . . is the sole arbiter' "of whether to grant such a motion (People v Moreno, 70 NY2d 403, 406 [1987]). Here,the court determined that its discussion with the jurors stayed within appropriate parameters, andwe conclude that there is no basis on this record to determine that the court abused its discretionin declining to recuse itself (see Peoplev Rios-Davilla, 64 AD3d 482, 483 [1st Dept 2009], lv denied 13 NY3d 838[2009]; see generally Moreno, 70 NY2d at 405-406).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe, and wedecline defendant's request to exercise our power to reduce the sentence as a matter of discretionin the interest of justice (see CPL 470.15 [6] [b]).
Finally, defendant's remaining contention is not preserved for our review (see CPL470.05 [2]) and, in any event, is without merit. Present—Centra, J.P., Peradotto, Carni andDeJoseph, JJ.