| People v Petion |
| 2020 NY Slip Op 04972 [186 AD3d 1410] |
| September 16, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rubens Petion, Appellant. |
Beverly Van Ness, New York, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, NY (Kevin C. King and John B. Latella ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P.Murphy, J.), rendered April 11, 2016, convicting him of robbery in the first degree (two counts)and robbery in the second degree (three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged and tried for his role as the getaway driver for a gunpoint robberyof a car dealership located in Franklin Square.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdicts of guilt were not against theweight of the evidence.
The defendant testified on his own behalf at the trial and claimed, inter alia, that two of hiscodefendants were not passengers in the getaway car, even though the People adduced evidenceat the trial that one of those two codefendants was observed by police officers fleeing on footfrom the car, and that the other codefendant was arrested along with the defendant upon their exitfrom the car. On appeal, the defendant posits that the jury may have found his testimonyunbelievable, and contends that he was unduly prejudiced by the Supreme Court's alleged failureto instruct the jury that the People had a burden to provide "evidence independent of [the] proofof guilt" (O'Donnell v State of NewYork, 26 AD3d 59, 64 [2005]), that his testimony was false, in order to consider histestimony as evidence of his consciousness of guilt. The defendant failed to preserve thiscontention for appellate review (see CPL 470.05 [2]). In any event, despite thedefendant's arguments to the contrary, no such instruction was required here (cf. People vYoung, 266 AD2d 93, 94 [1999]; People v Abdul-Malik, 61 AD2d 657, 661 [1978];People v Cright, 47 AD2d 906, 906 [1975]).
The defendant's contention that certain remarks made by the prosecutor in summationimproperly shifted the burden of proof is unpreserved for appellate review (see CPL470.05 [2]; People v Beaupre, 170AD3d 1031, 1033 [2019]). In any event, the challenged remarks were not improper, in thatthey "remained within the broad bounds of rhetorical comment permissible in summations" (People v Flowers, 102 AD3d 885,886 [2013]; see People v Powell, 288 AD2d 239, 240 [2001]; People v Olds, 222AD2d 531, 532 [1995]).
Contrary to the defendant's contentions, raised in his pro se supplemental brief, hischallenges to the felony complaints are academic, since the felony complaints were supersededby an indictment (see People vBrown, 170 AD3d 878, 880 [2019]; People v Barnett, 108 AD3d 638, 638 [2013]).
The contentions raised by the defendant in his pro se supplemental brief regarding the grandjury proceeding are not subject to review on direct appeal because they involve allegations thatare dehors the record, which should be raised in a motion pursuant to CPL 440.10 to vacate thejudgment (see People v Flores, 151AD3d 740, 741 [2017]; People vEnglish, 119 AD3d 706 [2014]; People v Redmond, 41 AD3d 514, 515-516 [2007]; People v Palmer, 29 AD3d 606[2006]; People v Sain, 261 AD2d 488 [1999]). Likewise, the defendant's contention thatthe People withheld certain alleged Brady material (see Brady v Maryland, 373US 83 [1963]) is not properly raised on direct appeal, and should also be raised in a motionpursuant to CPL 440.10 to vacate the judgment, because the facts supporting the defendant'sclaim are dehors the record (see Peoplev Ellis, 166 AD3d 993, 994 [2018], affd 34 NY3d 1092 [2019]; People v Geritano, 158 AD3d 724,725 [2018]; People v Wilson, 283 AD2d 339, 340 [2001]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Dillon, J.P., Balkin, Austin and Duffy, JJ., concur.