| People v Hankerson |
| 2018 NY Slip Op 07327 [165 AD3d 1285] |
| October 31, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rohan Hankerson, Appellant. |
The Legal Aid Society, New York, NY (Harold V. Ferguson, Jr., of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory L.Lasak, J.), rendered September 16, 2015, convicting him of murder in the second degree, robberyin the first degree, criminal possession of a weapon in the second degree (two counts), criminalpossession of stolen property in the fourth degree (eight counts), and criminal possession ofstolen property in the fifth degree (two counts), upon a jury verdict, and sentencing him to anindeterminate term of imprisonment of 25 years to life on the conviction of murder in the seconddegree, a determinate term of imprisonment of 25 years plus 5 years of postrelease supervisionon the conviction of robbery in the first degree, a determinate term of imprisonment of 15 yearsplus 5 years of postrelease supervision on the conviction of criminal possession of a weapon inthe second degree under count 7 of the indictment, and a determinate term of imprisonment of 1year on the conviction of criminal possession of stolen property in the fifth degree under count 26of the indictment, with the sentences imposed on those four convictions to run concurrently, anda determinate term of imprisonment of 15 years plus 5 years of postrelease supervision on theconviction of criminal possession of a weapon in the second degree under count 51 of theindictment, to run consecutively to the sentence imposed on the conviction of murder in thesecond degree, and an indeterminate term of imprisonment of 2 to 4 years for each of the eightconvictions of criminal possession of stolen property in the fourth degree, and a determinate termof imprisonment of 1 year for the conviction of criminal possession of stolen property in the fifthdegree under count 60 of the indictment, to run concurrently with each other but consecutively tothe sentence imposed on the conviction of murder in the second degree and consecutively to thesentence imposed on the conviction of criminal possession of a weapon in the second degreeunder count 51 of the indictment.
Ordered that the judgment is modified, as matter of discretion in the interest of justice, byreducing the term of imprisonment imposed on the convictions of the two counts of criminalpossession of a weapon in the second degree from determinate terms of imprisonment of 15 yearsto determinate terms of imprisonment of 10 years, and by providing that all sentences imposedshall run concurrently with each other except for the sentence imposed on the conviction ofcriminal possession of a weapon in the second degree under count 51 of the indictment, whichshall run consecutively to those sentences; as so modified, the judgment isaffirmed.
[*2] The defendant and five codefendantswere charged in a 64-count indictment with various crimes in connection with a series ofrobberies occurring over the course of two weeks in March 2011. After his codefendants pleadedguilty in full satisfaction of the indictment, the defendant proceeded to trial. The prosecutionpresented evidence that the defendant was the driver of a getaway vehicle in which three of hiscodefendants escaped after one of the codefendants shot a victim of one of the robberies. Thevictim subsequently died as a result of the gunshot wound. Additionally, evidence wasintroduced establishing that the defendant and his codefendants were apprehended in a vehicle inwhich stolen property, as well as the murder weapon, were recovered. Thereafter, the juryconvicted the defendant of murder in the second degree, robbery in the first degree, criminalpossession of a weapon in the second degree (two counts), criminal possession of stolen propertyin the fourth degree (eight counts), and criminal possession of stolen property in the fifth degree(two counts).
The defendant contends that his convictions of murder in the second degree, robbery in thefirst degree, and criminal possession of a weapon in the second degree were against the weight ofthe evidence because the evidence was insufficient to establish that he acted in concert with hiscodefendants. In fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the evidence here, which included the defendant'sstatements, videotape footage, and physical evidence, we are satisfied that the jury's finding ofaccessorial liability was not against the weight of the evidence (see People v Jackson, 44NY2d 935, 937 [1978]; People v Keitt, 42 NY2d 926, 927 [1977]; People v Williams, 156 AD3d1224, 1228 [2017]; People vEvans, 142 AD3d 1291, 1291-1292 [2016]).
The Supreme Court providently exercised its discretion in permitting the People to elicittestimony regarding uncharged crimes, since the probative value of that evidence outweighed therisk of prejudice to the defendant (see People v Molineux, 168 NY 264, 293 [1901]; People v Wright, 160 AD3d 667,668 [2018]; People v Franzese, 154AD3d 706, 707 [2017]; People vCockett, 95 AD3d 1230, 1231 [2012]). In addition, the court's limiting instruction to thejury served to alleviate any prejudice from the admission of that evidence (see People v Beer, 146 AD3d 895,896 [2017]; People v Bell, 136AD3d 838, 839 [2016]; People vHolden, 82 AD3d 1007, 1008 [2011]).
The defendant's claim that the jury's verdict should not have been accepted without inquiry iswithout merit (see People v Simms,13 NY3d 867, 871 [2009]; People v Mercado, 91 NY2d 960, 963 [1998]; Peoplev Pickett, 61 NY2d 773, 775 [1984]). No disagreement was expressed by any of the jurorsduring polling and none of the responses was equivocal (see People v Vazquez, 82 AD3d 1273, 1274 [2011]).
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Mastro, J.P., Austin, Miller andConnolly, JJ., concur.