Opinion
1350 KA 12-00909.
12-23-2015
The PEOPLE of the State of New York, Respondent, v. Timothy D. BROOMFIELD, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Opinion
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of assault in the second degree (Penal Law § 120.051 ) and robbery in the first degree (§ 160.151 ). Defendant's conviction stems from a savage beating of the victim on the street by a group of men. A witness testified that defendant came to her house after the incident and used her telephone to call a number to change the PIN number on an Electronic Benefits Transfer (EBT) card that had the victim's name on it; defendant also had the victim's identification and social security cards. Nine days later, defendant used the victim's EBT card to pay for items at a store.
Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish that he intended to use force to steal the victim's property (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, that contention is without merit inasmuch as the evidence was sufficient to permit the inference that defendant had the requisite intent (see People v. Gordon, 23 N.Y.3d 643, 649–650, 992 N.Y.S.2d 700; People v. Smith, 79 N.Y.2d 309, 315, 582 N.Y.S.2d 946, 591 N.E.2d 1132). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). It is well settled that “[g]reat deference is to be accorded to the fact[ ] finder's resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony” (People v. Aikey, 94 A.D.3d 1485, 1486, 943 N.Y.S.2d 702, lv. denied 19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [internal quotation marks omitted]; see People v. Curry, 82 A.D.3d 1650, 1651, 921 N.Y.S.2d 420, lv. denied 17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803). Although an acquittal would not have been unreasonable (see Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we perceive no reason to disturb the court's resolution of credibility issues and the weight that the court accorded to the evidence (see People v. Cook, 128 A.D.3d 1355, 1355–1356, 7 N.Y.S.3d 775, lv. denied 25 N.Y.3d 1200, 16 N.Y.S.3d 522, 37 N.E.3d 1165). The eyewitness's testimony was at times confusing, but his testimony did not include “hopeless contradictions” (People v. Foster, 64 N.Y.2d 1144, 1147, 490 N.Y.S.2d 726, 480 N.E.2d 340 [internal quotation marks omitted], cert. denied 474 U.S. 857, 106 S.Ct. 166, 88 L.Ed.2d 137). The eyewitness consistently testified that he saw defendant at the scene of the incident and at the time of the incident (see People v. Reynolds, 269 A.D.2d 735, 736, 704 N.Y.S.2d 398, lv. denied 95 N.Y.2d 838, 713 N.Y.S.2d 145, 735 N.E.2d 425, cert. denied 531 U.S. 945, 121 S.Ct. 342, 148 L.Ed.2d 275). In addition, the victim testified that he recognized defendant's voice immediately before the attack on him, and the witness who saw defendant after the incident testified that, although defendant said that he found the victim's cards in an alley, he also said “something, like, he had his kick in.”
We reject the further contention of defendant that he was denied effective assistance of counsel. Inasmuch as the evidence is legally sufficient to support the robbery conviction, counsel's failure to move for a trial order of dismissal does not constitute ineffective assistance (see People v. Graham, 125 A.D.3d 1496, 1497, 3 N.Y.S.3d 864, lv. denied 26 N.Y.3d 1008, 20 N.Y.S.3d 549, 42 N.E.3d 219; People v. Washington, 60 A.D.3d 1454, 1455, 875 N.Y.S.2d 732, lv. denied 12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084). Contrary to defendant's contention, defense counsel's summation was coherent and adequate (see People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109; People v. Simmons, 184 A.D.2d 1062, 1062, 586 N.Y.S.2d 913, lv. denied 82 N.Y.2d 726, 602 N.Y.S.2d 824, 622 N.E.2d 325). Defendant's contention regarding defense counsel's alleged failure to investigate the reliability of “earwitness” testimony involves matters outside the record and must be raised by way of a motion pursuant to CPL 440.10 (see People v. Cobb, 72 A.D.3d 1565, 1567, 900 N.Y.S.2d 224, lv. denied 15 N.Y.3d 803, 908 N.Y.S.2d 162, 934 N.E.2d 896; People v. Washington, 39 A.D.3d 1228, 1230, 834 N.Y.S.2d 407, lv. denied 9 N.Y.3d 870, 840 N.Y.S.2d 899, 872 N.E.2d 1205). We conclude that, “[v]iewing the evidence, the law and the circumstances of this case, in totality and as of the time of representation, ... defendant received meaningful representation” (People v. Hildreth, 86 A.D.3d 917, 918, 926 N.Y.S.2d 252; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.