| People v Walker |
| 2018 NY Slip Op 08797 [167 AD3d 1502] |
| December 21, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Thomas N. Walker, Appellant. |
Thomas J. Eoannou, Buffalo (Phil Modrzynski of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered November 13, 2012. The judgment convicted defendant, upon a nonjury verdict, ofrobbery in the first degree (three counts) and robbery in the second degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the factsby reversing those parts convicting defendant of robbery in the first degree under counts one andthree of the indictment and robbery in the second degree under counts two and four of theindictment and dismissing those counts of the indictment and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof three counts of robbery in the first degree (Penal Law § 160.15 [4]) and threecounts of robbery in the second degree (§ 160.10 [1]). The charges stem from twoseparate and distinct robberies that were committed 13 days apart. Counts one through four of theindictment concern the first incident, in which there were two victims, and counts five and sixconcern the second incident, in which there was only one victim. Before trial, Supreme Courtsuppressed identification testimony from one of the two victims of the first incident; the othervictim of that incident was never able to identify the assailants. The court refused to suppressidentification testimony from the victim of the second incident. After the People moved for anindependent source hearing with respect to the suppressed identification testimony, defendantapplied to the court for an "identification expert." Following the independent source hearing, thecourt adhered to its determination to suppress identification testimony related to the first incidentand, without elaboration, denied defendant's "request for additional funds to procure an[eyewitness] identification expert."
Defendant now contends that the court erred in denying his application for funds to retain aneyewitness identification expert only insofar as it related to the identification testimony from thevictim of the second incident. Even assuming, arguendo, that defendant's original applicationrelated to the identification testimony from the victim of the second incident and is thuspreserved for our review, we conclude that the court "did not abuse or improvidently exercise itsdiscretion" in denying defendant's application (People v Pike, 63 AD3d 1692, 1693 [4th Dept 2009], lvdenied 13 NY3d 838 [2009]; seePeople v Clark, 142 AD3d 1339, 1340 [4th Dept 2016], lv denied 28 NY3d1143 [2017]; People v Mallayev,120 AD3d 1358, 1358 [2d Dept 2014], lv denied 24 NY3d 1086 [2014]). To prevailon an application to have funds allocated for the retention of an expert witness, defendant "wasrequired to show that he was indigent, that the service was necessary to his defense and, if thecompensation he sought exceeded the statutory limit of $1,000, that extraordinary circumstancesjustified the expenditure" (People vClarke, 110 AD3d 1341, 1342 [3d Dept 2013], lv denied 22 NY3d 1197 [2014];see County Law § 722-c). Here, however, defendant failed to establish thatthe expert was " 'necessary to his defense' " (Clark, 142 AD3d at 1340;see Clarke, 110 AD3d at 1342; Pike, 63 AD3d at 1693), or "that extraordinarycircumstances justified [an] expenditure" exceeding the statutory limit (Clarke, 110AD3d at 1342). The eyewitness identification by the victim of the second incident wascorroborated by surveillance video from two separate locations (see People v Abney, 13 NY3d 251,269 [2009]; People v Granger, 122AD3d 940, 941 [2d Dept 2014], lv denied 25 NY3d 989 [2015]; cf. People v LeGrand, 8 NY3d449, 452 [2007]), and defense counsel conceded at trial that "identity [was] really not anissue" with respect to the second incident.
Defendant further contends that the conviction on each count is not supported by legallysufficient evidence because the People failed to establish that defendant committed the robberies,displayed what appeared to be a firearm, or was aided by another person actually present. Withrespect to counts one through four of the indictment, the only contention that defendant preservedfor our review through a motion specifically directed at the ground advanced on appeal is thecontention that the People failed to establish defendant's identity as the perpetrator of the robberyat issue in those counts (see generally People v Gray, 86 NY2d 10, 19 [1995]). We rejectthat contention. Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient toestablish defendant's identity as one of the two people who committed the robberies underlyingcounts one through four (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Wefurther conclude, with respect to the unpreserved contentions, that the evidence is legallysufficient to establish that defendant displayed what appeared to be a firearm (see generallyPeople v Lopez, 73 NY2d 214, 220 [1989]) and that he was aided by another person actuallypresent (see generally Bleakley, 69 NY2d at 495).
With respect to the legal sufficiency challenges to counts five and six, the only contentionthat defendant preserved for our review is the contention that the People did not establish hedisplayed what appeared to be a firearm (see Gray, 86 NY2d at 19). That contention lacksmerit inasmuch as the victim testified that defendant pointed a gun at her before he and hisaccomplice drove her to various locations to withdraw money from her bank account. Moreover,surveillance video admitted in evidence depicts a firearm protruding from the waistband ofdefendant's pants. We thus conclude that the evidence is legally sufficient to establish thatdefendant displayed what appeared to be a firearm during the commission of the robbery (seegenerally Lopez, 73 NY2d at 220; Bleakley, 69 NY2d at 495). We further conclude,with respect to the unpreserved contentions, that the evidence is legally sufficient to establishdefendant's identity as one of the perpetrators of the robbery and that he was aided by anotherperson who was actually present during the commission of the offense (see generallyBleakley, 69 NY2d at 495). The victim identified defendant at trial, and surveillance videoestablished that defendant and one other man were with the victim when she was taken to variousplaces to withdraw money from her bank account and to use her debit card to make purchases forthe two men.
Defendant further contends that the verdict on each count is against the weight of theevidence. With respect to counts one through four, we agree. Although the court in this nonjurytrial could have considered defendant's commission of the second robbery as probative of hisidentity as the perpetrator of the first robbery (see People v Nix, 192 AD2d 1116, 1116[4th Dept 1993], lv denied 82 NY2d 757 [1993]; cf. People v Robinson, 68 NY2d541, 549-550 [1986]), the court stated that it intended "to consider counts one through fourcompletely separate and distinct from counts [five and] six" and would "not allow one toinfluence the other" as the court had "promise[d]" in its Molineux ruling. The court, ineffect, charged itself to consider only evidence directly related to the first incident in determiningdefendant's guilt of counts one through four. In rendering its verdict, the court reiterated that ithad limited its review of the evidence on counts one through four to only that evidence directlyrelated to those counts, eschewing any consideration of evidence related to the second incident asMolineux evidence. We are constrained to do likewise.
Viewing the evidence in light of the elements of the crimes and the effective charge that thecourt gave itself (see generally People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict on counts onethrough four is against the weight of the evidence (see generally Bleakley, 69 NY2d at495). The only evidence considered by the court on the issue of defendant's identity as theperpetrator in the first incident was a grainy surveillance video. Although that video mightprovide legally sufficient evidence of the perpetrator's identity, we conclude that it is simply toograiny to establish the perpetrator's identity beyond a reasonable doubt (cf. People v Montgomery, 125 AD3d1455, 1455-1456 [4th Dept 2015], lv denied 25 NY3d 1168 [2015]). Indeed,although the police investigator who was assigned to the case was familiar with defendant fromprior investigations, he was unable to identify defendant in the video. We therefore modify thejudgment by reversing those parts convicting defendant of robbery in the first degree undercounts one and three of the indictment and robbery in the second degree under counts two andfour of the indictment and dismissing those counts of the indictment.
We further conclude, however, that the verdict on counts five and six is not against theweight of the evidence. Contrary to defendant's contention, the victim of that incident was able toidentify defendant as the perpetrator of the offense, and that identification was corroborated byclear and precise surveillance video from two separate locations. Even assuming, arguendo, that adifferent verdict would not have been unreasonable, it cannot be said that the court failed to givethe evidence the weight it should have been accorded (see generally Bleakley, 69 NY2dat 495; People v Carter, 145 AD3d1567, 1568 [4th Dept 2016]). Present—Carni, J.P., Lindley, DeJoseph, NeMoyer andWinslow, JJ.