Opinion
301 KA 18-02016
03-26-2021
The PEOPLE of the State of New York, Respondent v. Ronald J. BARBER, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, 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 criminal mischief in the third degree ( Penal Law § 145.05 [2] ) based upon damage he caused to limousines belonging to the business where he was employed as a driver.
Defendant contends that he was denied effective assistance of counsel because defense counsel purportedly misadvised him of the pretrial plea offer and failed to review a video recording of defendant's interrogation before trial. Both of those contentions, however, rely on matters outside the record on appeal and must therefore be raised by motion pursuant to CPL 440.10 (see People v. Spencer , 185 A.D.3d 1440, 1442, 127 N.Y.S.3d 670 [4th Dept. 2020] ; People v. Manning , 151 A.D.3d 1936, 1938, 59 N.Y.S.3d 229 [4th Dept. 2017], lv denied 30 N.Y.3d 951, 67 N.Y.S.3d 135, 89 N.E.3d 525 [2017] ; People v. Mangiarella , 128 A.D.3d 1418, 1418, 7 N.Y.S.3d 812 [4th Dept. 2015] ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime as charged to the jury, we conclude that, although "an acquittal would not have been unreasonable," the verdict is not against the weight of the evidence ( People v. Danielson , 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). While surveillance video footage did not clearly show defendant damaging the limousines, it showed him walking successively behind each of the damaged limousines in a manner that witnesses testified had no legitimate business purpose. Based upon that evidence, in conjunction with the physical evidence and the testimony establishing the time frame in which the damage occurred, the jury, in convicting defendant, did not "fail[ ] to give the evidence the weight it should be accorded" ( 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.