Opinion
No. 135 KA 19-02227
07-01-2022
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JOSE M. CASTRO, DEFENDANT-APPELLANT.
KELIANN M. ARGY, ORCHARD PARK, FOR DEFENDANT-APPELLANT. GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
KELIANN M. ARGY, ORCHARD PARK, FOR DEFENDANT-APPELLANT.
GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered November 14, 2019. The judgment convicted defendant upon a jury verdict of robbery in the first degree, robbery in the second degree (two counts) and criminal possession of a weapon in the second degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [2]), and two counts each of robbery in the second degree (§ 160.10 [1], [2] [a]) and criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]).
We reject the contention of defendant that he was denied his statutory right to testify before the grand jury. Defendant failed to serve the requisite written notice upon the District Attorney that he intended to testify before the grand jury (see CPL 190.50 [5] [a]; People v Hernandez, 192 A.D.3d 1528, 1529 [4th Dept 2021], lv denied 37 N.Y.3d 957 [2021]). We similarly reject defendant's contention that he was denied effective assistance of counsel by defense counsel's failure to move to dismiss the indictment pursuant to CPL 190.50 (5) (c). As noted, defendant did not serve the requisite written notice upon the District Attorney that he intended to testify before the grand jury (see CPL 190.50 [5] [a]), and it is well settled that "[t]here can be no denial of effective assistance of... counsel arising from [defense] counsel's failure to 'make a motion or argument that has little or no chance of success'" (People v Caban, 5 N.Y.3d 143, 152 [2005], quoting People v Stultz, 2 N.Y.3d 277, 287 [2004], rearg denied 3 N.Y.3d 702 [2004]).
To the extent that defendant further contends that he was denied effective assistance of counsel on the ground that his former attorney failed to effectuate his intent to testify before the grand jury, that contention concerns matters outside the record and thus is not reviewable on direct appeal and must be raised in a motion pursuant to CPL article 440 (see People v Slater, 61 A.D.3d 1328, 1329 [4th Dept 2009], lv denied 13 N.Y.3d 749 [2009]; People v Vann, 288 A.D.2d 876, 877 [4th Dept 2001], lv denied 97 N.Y.2d 709 [2002]; see also People v Maffei, 35 N.Y.3d 264, 269 [2020]).
Contrary to defendant's further contention, the conviction is supported by legally sufficient evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). "[T]he element of identity was established by a compelling chain of circumstantial evidence that had no reasonable explanation except that defendant was one of the perpetrators" (People v Brown, 92 A.D.3d 1216, 1217 [4th Dept 2012], lv denied 18 N.Y.3d 992 [2012]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).
We reject defendant's contention that testimony from a police officer who identified defendant from a surveillance video was improperly admitted in evidence. Contrary to defendant's assertion, the means by which the police officer initially identified defendant were not unduly suggestive (see People v Collins, 60 N.Y.2d 214, 220 [1983]; cf. People v Burton, 191 A.D.3d 1311, 1313 [4th Dept 2021], lv denied 36 N.Y.3d 1095 [2021]; People v Gambale, 150 A.D.3d 1667, 1668-1669 [4th Dept 2017]) and County Court did not abuse its discretion in permitting the testimony of that officer at trial (see People v Russell, 165 A.D.2d 327, 336 [2d Dept 1991], affd 79 N.Y.2d 1024 [1992])." 'A lay witness may give an opinion concerning the identity of a person depicted in a surveillance [video] if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the [video] than is the jury'" (People v Graham, 174 A.D.3d 1486, 1487-1488 [4th Dept 2019], lv denied 34 N.Y.3d 1016 [2019]; see Russell, 165 A.D.2d at 336). Here, the court did not abuse its discretion in allowing the testimony because the People presented evidence establishing that the officer was familiar with defendant based on numerous prior interactions (see People v Mosley, 200 A.D.3d 1658, 1659 [4th Dept 2021]; cf. Graham, 174 A.D.3d at 1487-1488) and defendant's appearance had changed since the date of the incident (see Russell, 79 N.Y.2d at 1025; People v Sampson, 289 A.D.2d 1022, 1022-1023 [4th Dept 2001], lv denied 97 N.Y.2d 733 [2002]). Further, "the trial court issued appropriate limiting instructions to the jury" (People v Sanchez, 21 N.Y.3d 216, 225 [2013]; see Mosley, 200 A.D.3d at 1659).
Defendant failed to preserve for our review his contentions that the indictment was multiplicitous and duplicitous (see People v Allen, 24 N.Y.3d 441, 449-450 [2014]; People v Box, 145 A.D.3d 1510, 1512-1513 [4th Dept 2016], lv denied 29 N.Y.3d 1076 [2017]; People v Fulton, 133 A.D.3d 1194, 1194-1195 [4th Dept 2015], lv denied 26 N.Y.3d 1109 [2016], reconsideration denied 27 N.Y.3d 997 [2016]) and otherwise defective (see generally People v Iannone, 45 N.Y.2d 589, 600 [1978]) and that the verdict was inconsistent (see People v Dinant, 175 A.D.3d 1833, 1834 [4th Dept 2019], lv denied 34 N.Y.3d 1077 [2019]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).