| People v McIntosh |
| 2018 NY Slip Op 00977 [158 AD3d 1289] |
| February 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jamel B. McIntosh, Appellant. |
Adam H. Van Buskirk, Auburn, for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Amanda L. Casselman of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered May8, 2014. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree(two counts).
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 of twocounts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]). The casearose from an incident wherein defendant, accompanied by another person, forcibly stole a glasspipe from the victim in the parking lot of a supermarket. The entire event was recorded on videoby the supermarket's security cameras, and footage from the cameras was admitted in evidence attrial.
Contrary to defendant's contention, the evidence that he was aided by another is legallysufficient. The video evidence established that defendant "committed the robbery in the full viewof his companion, who acted as a lookout and was in a position to render immediate assistance todefendant" (People v Wilkerson, 189 AD2d 592, 592 [1st Dept 1993], lv denied81 NY2d 849 [1993]; see People vHamilton, 114 AD3d 590, 590 [1st Dept 2014], lv denied 23 NY3d 963[2014]).
Contrary to defendant's further contention, the evidence that the victim sustained physicalinjury is also legally sufficient. Although the victim was not competent to testify that hesustained a fracture or underwent reconstructive surgery (see generally People v Brandon,102 AD2d 832, 833 [2d Dept 1984]), he was "competent to testify to 'readily apparent externalphysical injuries of which he obviously [had] personal knowledge' " (People v Blauvelt, 156 AD3d1333, 1334 [4th Dept 2017]). Here, the victim competently testified that he suffered a blackeye, making it difficult to see, and suffered an injury to his finger requiring medical attention andsurgery. The victim also competently testified that, at the time of trial, he still had limitedmobility in the injured finger. That evidence is legally sufficient to establish that the victimsustained a physical injury (see People vBlocker, 23 AD3d 575, 575 [2d Dept 2005], lv denied 6 NY3d 809 [2006]; cf. People v Williams, 146 AD3d906, 909 [2d Dept 2017], lv denied 29 NY3d 1002 [2017]). In addition, although weagree with defendant that County Court erred in allowing the victim to offer testimony that hewas not competent to provide (see generally Brandon, 102 AD2d at 833), we concludethat the error is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
Defendant failed to preserve for our review his remaining challenges to the legal sufficiencyof the evidence because his motion for a trial order of dismissal was not " 'specificallydirected' " at the alleged errors (People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, defendant's contentions lack merit. Furthermore, viewing the evidence in light of theelements of the two counts of robbery as charged to the jury (see People v Danielson, 9NY3d [*2]342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Defendant contends that the court erred in denying that part of his omnibus motion seeking aWade hearing with respect to the identifications by four police officers. The court'srationale was that a Wade hearing was not necessary inasmuch as the identifications wereconfirmatory. Preliminarily, we note that defendant failed to preserve his contention for ourreview with respect to three of those police officers because his omnibus motion sought a hearingon the identification by only one of the police officers (see People v Zhang Wan, 203AD2d 499, 499-500 [2d Dept 1994], lv denied 83 NY2d 973 [1994]), and we decline toexercise our power to review that part of his contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). With respect to the fourth officer, defendant moreparticularly contends that the court "should have granted [his] request for a hearing, at least toexplore [that officer's] alleged prior familiarity with him" (People v Rodriguez, 79 NY2d445, 451 [1992]). Although we agree with defendant that the court erred in summarilydetermining that the identification by that officer was confirmatory (see id. at 448-452;People v Casanova, 119 AD3d976, 979-980 [3d Dept 2014]), we conclude that the error is harmless (see generallyCrimmins, 36 NY2d at 237).
We reject defendant's challenges to the admissibility of an audio recording of a telephone callthat he made from county jail to his accomplice. Contrary to his contention, he was not entitled toa Huntley hearing with respect to the statements he made during the call inasmuch as "theinformation was not sought by the prosecutor but, rather, was passively received by theprosecutor" (People v Davis, 38AD3d 1170, 1171 [4th Dept 2007], lv denied 9 NY3d 842 [2007], certdenied 552 US 1065 [2007]). Contrary to his further contention, the portion of the recordingthat was played at trial is not " 'so inaudible and indistinct that the jury would have tospeculate concerning its contents' " (People v Lopez, 119 AD3d 1426, 1428 [4th Dept 2014], lvdenied 25 NY3d 990 [2015]). Contrary to his next contention, we conclude that the recordingwas admissible because defendant's statements were relevant to his consciousness of guilt, andthe probative value of the statements outweighed any potential for undue prejudice (see People v Jefferson, 125 AD3d1463, 1463 [4th Dept 2015], lv denied 25 NY3d 990 [2015]).
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,NeMoyer, Troutman and Winslow, JJ.