Summary
holding that a consciousness of guilt instruction was warranted by evidence "that after the subject robbery was committed the defendant went home and altered his appearance by changing his clothes before going out again"
Summary of this case from Rainey v. StateOpinion
04-20-2016
The PEOPLE, etc., respondent, v. Bijan BROWN, appellant.
Clare J. Degnan, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant. James A. McCarty, Acting District Attorney, White Plains, N.Y. (Hae Jin Liu and Laurie G. Sapakoff of counsel), for respondent.
Clare J. Degnan, White Plains, N.Y. (Jacqueline F. Oliva of counsel), for appellant.
James A. McCarty, Acting District Attorney, White Plains, N.Y. (Hae Jin Liu and Laurie G. Sapakoff of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered January 9, 2015, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, there was a sufficient factual predicate to support a jury instruction on consciousness of guilt (see People v. Arriaga, 77 A.D.3d 846, 847, 909 N.Y.S.2d 379; People v. Solimini, 69 A.D.3d 657, 658, 892 N.Y.S.2d 480). There was evidence presented at trial indicating that after the subject robbery was committed the defendant went home and altered his appearance by changing his clothes before going out again (see People v. Sage, 23 N.Y.3d 16, 26, 988 N.Y.S.2d 104, 11 N.E.3d 177; People v. Sabines, 121 A.D.3d 1409, 1410, 995 N.Y.S.2d 377). The defendant's further argument that the language of the consciousness-of-guilt charge was improper and misleading is unpreserved for appellate review (see CPL 470.05[2]; People v. Arriaga, 77 A.D.3d at 847, 909 N.Y.S.2d 379) and, in any event, without merit. The County Court's charge conveyed the proper legal standard with respect to evidence of consciousness of guilt (see People v. Newman, 107 A.D.3d 827, 829, 967 N.Y.S.2d 122; People v. London, 248 A.D.2d 554, 555, 669 N.Y.S.2d 903). The court instructed the jury on the weight to be given to the evidence, properly left to the jury the question of whether the evidence indicated consciousness of guilt, and discussed the possibility of an innocent explanation for the conduct at issue (see People v. Arriaga, 77 A.D.3d at 847, 909 N.Y.S.2d 379; People v. Solimini, 69 A.D.3d at 658, 892 N.Y.S.2d 480; People v. Robinson, 10 A.D.3d 696, 781 N.Y.S.2d 781).
The defendant's contention that the County Court erred by instructing the jury as to an alibi defense is waived because the court granted the defendant's request to provide this charge to the jury (see People v. Ford, 62 N.Y.2d 275, 283, 476 N.Y.S.2d 783, 465 N.E.2d 322; People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212).
The defendant's remaining contentions are without merit.
BALKIN, J.P., ROMAN, COHEN and HINDS–RADIX, JJ., concur.