| People v Allen |
| 2020 NY Slip Op 07302 [189 AD3d 463] |
| December 3, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Corey Allen, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at jury trial; MarkDwyer, J. at resettlement hearing and sentencing), rendered April 8, 2018, convicting defendantof two counts of robbery in the second degree, and sentencing him, as a persistent violent felonyoffender, to concurrent terms of 17 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. As we observed on a codefendant's appeal (People v Bryant, 180 AD3d 442 [1st Dept 2020], lv denied35 NY3d 968 [2020]), the evidence established that the two defendants acted in concert witheach other. In particular, the evidence supports the conclusion that when defendant assaulted thevictim, he did so for the purpose of aiding the codefendant in taking the victim's property.
The court providently declined to declare a mistrial when the deliberating jury issued a notestating that it was unable to reach a unanimous verdict. Instead, the court gave an appropriateinstruction that encouraged the jury to continue deliberating. This was the jury's only deadlocknote, and there was no indication that further deliberations would be fruitless (see Matter ofPlummer v Rothwax, 63 NY2d 243, 252 [1984]). Defendant's argument that the continuationof deliberations was coercive under the circumstances is speculative. Defendant did not preservehis challenge to the content of the court's response to the deadlock note, and we decline to reviewit in the interest of justice. As an alternative holding, we find no basis for reversal (see People v Morgan, 28 NY3d516, 522 [2016]).
Most of defendant's ineffective assistance of counsel claims are unreviewable on directappeal because they involve matters not reflected in, or fully explained by, the record (seePeople v Rivera, 71 NY2d 705, 709 [1988]; People v Love, 57 NY2d 998 [1982]).Accordingly, since defendant has not made a CPL 440.10 motion, the merits of theineffectiveness claims, except the claim that defense counsel deferred to defendant whether toseek a jury charge on a lesser included offense, may not be addressed on appeal.
Defendant received ineffective assistance of counsel when defense counsel deferred todefendant whether to seek a jury charge on a lesser included offense (see People v Colville, 20 NY3d20, 23 [2012] [defendant denied his right to counsel when court permitted him, rather thandefense counsel, to decide whether to request a jury charge on a lesser included offense]).However, the error was harmless beyond a reasonable doubt (see People v Crimmins, 36NY2d 230, 238 [1975]; cf. People v Martin, 59 NY2d 704, 705 [1983]). Viewing theevidence in the light most favorable to defendant, there was no reasonable view of the evidencethat defendant committed [*2]third-degree, but notsecond-degree, robbery, i.e., that he committed the robbery without the involvement of a secondrobber or did not cause the victim physical injury (see People v Camara, 44 AD3d 492, 492 [1st Dept 2007], lvdenied 9 NY3d 1031 [2008]).
Defendant did not preserve his argument that the court improperly interfered with the trial,and displayed hostility toward him and his counsel. As an alternative holding, we find thatnothing in the court's conduct was so egregious as to deprive defendant of a fair trial (seegenerally People v Moulton, 43 NY2d 944, 945 [1978]; People v Melendez, 31 AD3d 186, 196 [1st Dept 2006], lvdenied 7 NY3d 927 [2006]).
Defendant's challenges to the receipt in evidence of the victim's 911 call, and to the court'sresponse to a jury note requesting definitions of the crimes charged, are generally similar toarguments this Court rejected on the codefendant's appeal in our respective alternative holdingson these issues (Bryant, 180 AD3d at 442). We find no reason to reach a different resulthere.
The court presiding at the resettlement hearing providently exercised its discretion indetermining that testimony from the trial Justice (who had retired while the resettlement issuewas pending) concerning her recollection of a disputed portion of the trial transcript wasunnecessary (see generally People vBethune, 29 NY3d 539, 541 [2017]; People v Alomar, 93 NY2d 239, 247[1999]). The trial Justice's recollection of the disputed colloquy was already in the record. In anyevent, even if the actual record is as defendant claims, rather than as the resettlement court found,there would be no basis for reversal. Concur—Renwick, J.P., Manzanet-Daniels,Mazzarelli, Singh, Scarpulla, JJ.