Opinion
03-12-2024
The PEOPLE of the State of New York, Respondent, v. Joshua ARMSTRONG, Defendant–Appellant.
Caprice R. Jenerson, Office of Appellate Defender, New York (Margaret E. Knight of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
Caprice R. Jenerson, Office of Appellate Defender, New York (Margaret E. Knight of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Anna Notchick of counsel), for respondent.
Manzanet–Daniels, J.P., Moulton, Scarpulla, Pitt–Burke, O’Neill Levy, JJ.
Judgment, Supreme Court, New York County (Steven M. Statsinger, J.), rendered December 13, 2021, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as second violent felony offender, to a term of five years, unanimously affirmed.
[1] The verdict was based on legally sufficient evidence and 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]). The jury could reasonably conclude from the cell phone video that defendant, after attacking the victim, reached into the victim’s back pocket with the intent to take the victim’s wallet (see People v. Cordero, 156 A.D.3d 409, 410, 64 N.Y.S.3d 524 [1st Dept. 2017], lv denied 30 N.Y.3d 1114, 77 N.Y.S.3d 339, 101 N.E.3d 980 [2018]). The fact that defendant was acquitted of another charge does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 561, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000]).
[2] Defendant’s argument that the cell phone video was not properly authenticated is unpreserved, and we decline to address it in the interest of justice. As an alternative holding, we reject it on the merits. Although the victim, who had no memory of the incident after sustaining the first of numerous blows to the head, could not attest to the accuracy of the portion of the video that appeared to show defendant reaching his hand into his back pocket, the totality of the evidence supported the inference that the video depicted the relevant events (see People v. Davis, 201 A.D.3d 508, 509, 160 N.Y.S.3d 241 [1st Dept. 2022], lv. denied 38 N.Y.3d 1133, 172 N.Y.S.3d 844, 193 N.E.3d 509 [2022]; People v. Mercedes, 172 A.D.3d 599, 600–601, 100 N.Y.S.3d 264 [1st Dept. 2019], lv denied 33 N.Y.3d 1071, 105 N.Y.S.3d 10, 129 N.E.3d 330 [2019]). This evidence included the victim’s testimony identifying himself and defendant in the video, as well as the time and location of the video, and the undisputedly authenticated surveillance footage capturing the events that occurred immediately after those depicted in the video. Further, the cell phone video itself, "raise[d] no doubt about [its] authenticity" (Davis, 201 A.D.3d at 509, 160 N.Y.S.3d 241)
[3, 4] The court providently exercised its discretion in admitting the photo array in which the victim identified defendant, with a suitable limiting instruction, for the purpose of completing the narrative regarding defendant’s arrest (see People v. Lee, 167 A.D.3d 518, 519, 90 N.Y.S.3d 34 [1st Dept. 2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 218, 122 N.E.3d 1131 [2019]). In any event, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).