Opinion
2012-01-26
The PEOPLE of the State of New York, Respondent, v. Rickey BRYANT, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Thomas M. Nosewicz of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Thomas M. Nosewicz of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), for respondent.
MAZZARELLI, J.P., SAXE, CATTERSON, ACOSTA, ROMÁN, JJ.
Judgment, Supreme Court, Bronx County (Albert Lorenzo, J. at hearing; Analisa Torres, J. at jury trial and sentencing), rendered August 11, 2009, convicting defendant of robbery in the first degree, criminal possession of stolen property in the fifth degree, and two counts of criminal possession of a controlled substance in the seventh degree, and sentencing him to an aggregate term of 5 years, unanimously affirmed.
The court properly denied defendant's suppression motion. Upon defendant's lawful arrest at the door of his apartment, the police properly conducted a limited protective sweep of the apartment to determine if there was anyone present who might destroy evidence or pose a threat to the officers ( see Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 [1990] ). The robbery victim had provided information warranting a reasonable belief that other participants in the robbery might be present in the apartment. The record supports the hearing court's finding that the recovery of incriminating evidence from a partly open closet was justified under the plain view doctrine, and was within the scope of the protective sweep ( see People v. Lasso–Reina, 305 A.D.2d 121, 122, 758 N.Y.S.2d 652 [2003], lv. denied 100 N.Y.2d 595, 766 N.Y.S.2d 171, 798 N.E.2d 355 [2003] ).
The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning credibility, including its resolution of inconsistencies in the testimony of the prosecution witnesses.
The court properly denied defendant's request for a missing witness charge, since defendant failed to meet his burden of showing that the uncalled witness would have provided material, noncumulative testimony ( see People v. Brunner, 67 A.D.3d 464, 465, 890 N.Y.S.2d 3 [2009], affd. 16 N.Y.3d 820, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011] ).