| People v Wright |
| 2018 NY Slip Op 02347 [160 AD3d 667] |
| April 4, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ronald Wright, Appellant. |
Ronald Wright, Malone, NY, appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Lori Glachman, andGamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen AnnRiviezzo, J.), rendered October 28, 2014, convicting him of robbery in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalpossession of a weapon in the second degree under count five of the indictment, vacating thesentence imposed thereon, and dismissing that count of the indictment; as so modified, thejudgment is affirmed.
The defendant failed to preserve for appellate review his contention that the convictions werenot supported by legally sufficient evidence (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484[2008]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), wefind that it was legally sufficient to establish the defendant's guilt of robbery in the second degreeand criminal possession of a weapon in the second degree. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383 [2004]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt as to those crimes was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
However, the defendant correctly contends, and the People properly concede, that theconviction of criminal possession of a weapon in the second degree subjected him to doublejeopardy. Prior to the defendant's trial in this case, the defendant pleaded guilty in Nassau Countyto possessing the same gun that was used in the instant robbery. There was no evidence offered attrial to show that the defendant's possession of the gun was not continuous. Thus, the defendant'spossession of the same gun on December 14, 2011, in Kings County in connection with theinstant robbery, and on December 20, 2011, in Nassau County, constituted a single offense forwhich he could be prosecuted only once (see Matter of Johnson v Morgenthau, 69 NY2d148 [1987]; People v Agard, 199 AD2d 401, 403 [1993]). Accordingly, the conviction ofcriminal possession of a weapon in the second [*2]degree arisingfrom the incident of December 14, 2011, must be vacated.
Contrary to the defendant's contention, the Supreme Court properly admitted evidence of thedefendant's conviction in Nassau County under indictment No. 82N-12 of criminal possession ofa weapon in the fourth degree, the underlying facts of that conviction, including that the gun wasrecovered during a car stop in Nassau County on December 20, 2011, and ballistics evidenceshowing that the loaded gun recovered from defendant's car on December 20, 2011, was the samegun used in the instant robbery committed in Kings County on December 14, 2011. Evidence ofthe defendant's conviction in Nassau County of criminal possession of a weapon in the fourthdegree was probative of the defendant's intent to commit the instant robbery in the complainant'shome, was inextricably interwoven with the instant robbery, and was necessary to complete thenarrative of events leading to the defendant's arrest in the instant robbery case (see People vTosca, 98 NY2d 660, 661 [2002]; People v Till, 87 NY2d 835, 837 [1995];People v Molineux, 168 NY 264 [1901]; People v Henry, 166 AD2d 720 [1990]).In addition, the probative value of this evidence outweighed the risk of prejudice to the defendant(see People v Alvino, 71 NY2d 233 [1987]; People v Giuca, 58 AD3d 750 [2009]; People v Washington, 28 AD3d335 [2006]; People v Elder, 12AD3d 379 [2004]; People v Edwards, 295 AD2d 270 [2002]), and the court'slimiting instruction to the jury served to alleviate any prejudice resulting from the admission ofthe evidence (see People v Beer,146 AD3d 895 [2017]; People vHolden, 82 AD3d 1007 [2011]).
Contrary to the defendant's contention, the Supreme Court properly denied his application toadmit the hearsay statement of a nontestifying coconspirator. The defendant failed to establishthat the statement was against the penal interest of the nontestifying coconspirator, including thatthe statement was reliable (cf. People vShabazz, 22 NY3d 896, 898 [2013]; People v Brensic, 70 NY2d 9, 14 [1987];People v Settles, 46 NY2d 154, 167 [1978]).
Contrary to the defendant's contention, the Supreme Court properly determined that thefailure of the People to produce a surveillance tape showing the defendant and a coconspiratorarriving at the complainant's home just before the robbery did not constitute a violation of hisrights under Brady v Maryland (373 US 83 [1963]). The evidence at trial established thatthe surveillance tape was inadvertently lost. Thus, the defendant failed to establish that thesurveillance tape was suppressed by the People. In addition, the defendant failed to establish thatthe surveillance tape was exculpatory or impeaching in nature (see generally Strickler vGreene, 527 US 263, 281-282 [1999]; Giglio v United States, 405 US 150, 154-155[1972]). Furthermore, insofar as the evidence established that the surveillance tape wasinadvertently lost and not destroyed in bad faith, the complainant's testimony as to what the lostsurveillance tape showed did not violate the best evidence rule (see Schozer v William PennLife Ins. Co. of N.Y., 84 NY2d 639, 643 [1994]).
Contrary to the defendant's contention, the complainant properly authenticated certain videoclips and still photographs. The evidence at trial established that the complainant and a detectiveviewed the surveillance tape after the robbery, and that the complainant copied a three-secondvideo clip from that surveillance tape to his cell phone from which certain still photographs weremade. The video clip and the photographs showed the defendant and a coconspirator arriving atthe complainant's home before the robbery and showed them running from the home, gettinghurriedly into a car and driving away after the robbery. The complainant's authentication of thevideo clip and photographs was proper because he witnessed what was captured on the video clipand photographs, and he testified that he was familiar with the video system (see People vPatterson, 93 NY2d 80, 84-85 [1999]; People v McGee, 49 NY2d 48, 59-60 [1979];People v Costello, 128 AD3d848 [2015]; People v Hill, 110AD3d 410, 411 [2013]).
The defendant failed to preserve for appellate review his contention that the Supreme Court'scurtailment of his cross-examination of the complainant constituted a violation of his SixthAmendment right of confrontation (see CPL 470.05 [2]). In any event, insofar as thecourt afforded the defendant the opportunity to contradict answers given by the complainant toshow bias, interest, or hostility (seePeople v Diaz, 85 AD3d 1047, 1050 [2011], affd 20 NY3d 569 [2013]), thedefendant was not deprived of his right of confrontation (see id. at 150; People vVigliotti, 203 AD2d 898 [1994]). The defendant's similar contention that the court'scurtailment of his cross-examination of the [*3]complainantconstituted a violation of the defendant's right to due process is likewise without merit. "Thenature and extent of cross-examination is subject to the sound discretion of the Trial Judge"(People v Schwartzman, 24 NY2d 241, 244 [1969]; see People v Kinard, 215AD2d 591 [1995]). Here, the court properly limited defense counsel's cross-examination of thecomplainant because counsel's line of inquiry, in addition to being without foundation, wouldhave caused the jury to speculate about irrelevant matters and matters not in evidence (seePeople v Kinard, 215 AD2d at 591; People v Hendricks, 214 AD2d 584 [1995];People v Thomas, 141 AD2d 782 [1988]).
The defendant's contention that he was deprived of a fair trial by certain statements made bythe prosecutor during summation is not preserved for appellate review because the defendanteither failed to object to the prosecutor's statements or made only general objections, and did notseek curative instructions or move for a mistrial when his objections were sustained (seeCPL 470.05 [2]; People vMorris, 2 AD3d 652 [2003]; People v McHarris, 297 AD2d 824, 825 [2002]). Inany event, the prosecutor's statements in his summation, for the most part, constituted faircomment on the evidence and the inferences to be drawn therefrom (see People v Fuhrtz, 115 AD3d760 [2014]; People v Birot, 99AD3d 933 [2012]; People vGuevara-Carrero, 92 AD3d 693, 695 [2012]; People v McHarris, 297 AD2d at825), or were fair response to defense counsel's comments during summation (see People vAdamo, 309 AD2d 808 [2003]; People v Clark, 222 AD2d 446, 447 [1995];People v Vaughn, 209 AD2d 459, 459-460 [1994]). Any improper statements were not soflagrant or pervasive as to deprive the defendant of a fair trial (see People v Almonte, 23 AD3d392, 394 [2005]; People v Svanberg, 293 AD2d 555 [2002]).
The defendant's contention that the verdict was repugnant because the jury found him guiltyof criminal possession of a weapon in the second degree but acquitted him of robbery in the firstdegree is unpreserved for appellate review, as he failed to raise the issue before the jury wasdischarged (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Tharpe, 92 AD3d 701,702 [2012]; People v Vazquez, 82AD3d 1273, 1275 [2011]; People vAriza, 77 AD3d 844, 845 [2010]). In any event, the contention is academic in light ofthe vacatur of the conviction of criminal possession of a weapon in the second degree (seegenerally People v Brown, 235 AD2d 589 [1997]). Rivera, J.P., Cohen, Maltese andIannacci, JJ., concur. [Prior Case History: 2014 NY Slip Op 32853(U).]