Opinion
No. 2020-05025 Ind. No. 478/19
08-03-2022
The People of the State of New York, respondent, v. Markishia Hardy, appellant.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Christopher Turk and Marion Tang of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Christopher Turk and Marion Tang of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered March 11, 2020, convicting her of robbery in the second degree and robbery in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted of robbery in the second degree and robbery in the third degree based on her alleged participation in the removal of merchandise from a store in Huntington Station, without the store's permission and without paying for the merchandise.
The County Court erred in admitting into evidence, as excited utterances, the statements made on a recording of a 911 call because the caller did not personally observe the material events which she reported to the 911 operator (see People v Cummings, 31 N.Y.3d 204, 209, citing People v Fratello, 92 N.Y.2d 565, 571). Nevertheless, the error was harmless, as there was overwhelming evidence of defendant's guilt without reference to the statements and no reasonable possibility that the error might have contributed to the defendant's conviction (see People v McGhee, 194 A.D.3d 498, 499).
The defendant's challenge to the legal sufficiency of her conviction of robbery in the second degree is unpreserved for appellate review (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342, 349), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633, 638).
As the People concede, robbery in the third degree is a lesser included offense of robbery in the second degree (see CPL 300.30[4]; People v Wingate, 184 A.D.3d 738, 740; People v Hutson, 43 A.D.3d 959, 959; People v Gibson, 295 A.D.2d 529, 530). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3]). Accordingly, we vacate the conviction of robbery in the third degree and the sentence imposed thereon, and dismiss that count of the indictment (see People v Lee, 39 N.Y.2d 388, 390; People v Wingate, 184 A.D.3d at 740).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's contention that the County Court erred in admitting into evidence the testimony of the defendant's probation officer is unpreserved for appellate review.
The defendant's remaining contention is without merit.
CONNOLLY, J.P., CHRISTOPHER, FORD and DOWLING, JJ., concur.