Opinion
884 KA 15–01393
09-27-2019
The PEOPLE of the State of New York, Respondent, v. Joseph M. LACROSS, Defendant–Appellant. (Appeal No. 1.)
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER 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[3] ). We reject defendant's contention that the photo array from which a witness identified him was unduly suggestive, thereby tainting that witness's subsequent in-court identification of defendant. "[A]lthough [ ]defendant was the only person depicted in a red shirt in the photo array, it was ‘not so distinctive as to be conspicuous’ " ( People v. Lundy, 165 A.D.3d 1626, 1627, 85 N.Y.S.3d 665 [4th Dept. 2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 588, 121 N.E.3d 215 [2019] ; see People v. Mead, 41 A.D.3d 1306, 1307, 838 N.Y.S.2d 303 [4th Dept. 2007], lv denied 9 N.Y.3d 963, 848 N.Y.S.2d 31, 878 N.E.2d 615 [2007] ).
Defendant's challenge to the legal sufficiency of the evidence with respect to whether he used or threatened to use a dangerous instrument is also without merit. "[T]he victim's testimony that defendant removed a knife from his pocket immediately before asking for money is legally sufficient to establish that defendant possessed a dangerous instrument" ( People v. Simmons, 128 A.D.3d 1379, 1379, 7 N.Y.S.3d 788 [4th Dept. 2015], lv denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015] ). Further, the jury could have reasonably concluded that, by doing so, defendant was making an implied threat to use the knife against the victim (see id. at 1380, 7 N.Y.S.3d 788 ; People v. Espada, 94 A.D.3d 451, 452, 941 N.Y.S.2d 151 [1st Dept. 2012], lv denied 19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d 110 [2012] ; People v. Mitchell, 59 A.D.3d 739, 739–740, 874 N.Y.S.2d 226 [2d Dept. 2009], lv denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009] ). "[A]ny inconsistency between the victim's trial testimony and the victim's testimony from prior proceedings was not so great as to render his trial testimony incredible as a matter of law" ( Simmons, 128 A.D.3d at 1380, 7 N.Y.S.3d 788 ). Contrary to defendant's additional contention, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see People v. Johnson, 105 A.D.3d 1452, 1452–1453, 963 N.Y.S.2d 911 [4th Dept. 2013], lv denied 21 N.Y.3d 1016, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, the sentence is not unduly harsh or severe.