Opinion
9178 9179 Ind. 170/15
05-02-2019
The PEOPLE of the State of New York, Respondent, v. Robert BROWN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jacqueline A. Meese–Martinez of counsel), for appellant. Robert Brown, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jacqueline A. Meese–Martinez of counsel), for appellant.
Robert Brown, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Sweeny, J.P., Gische, Webber, Kahn, Moulton, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J. at suppression hearing and severance motion; Michael R. Sonberg, J. at jury trial and sentencing), rendered August 1, 2016, convicting defendant of burglary in the third degree (seven counts), grand larceny in the third degree (two counts), grand larceny in the fourth degree (four counts), unauthorized use of a vehicle in the second degree (seven counts), tampering with physical evidence and reckless endangerment in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 10 to 20 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the burglary conviction under the first count of the indictment and the unauthorized use of a vehicle conviction under the third count, and dismissing those counts, and otherwise affirmed; and order, same court (Michael R. Sonberg, J.), entered on or about October 25, 2017, which denied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
Except as indicated, 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] ). Defendant's challenges to the proof of value regarding the third-degree grand larceny convictions are unavailing. In each instance, the victim was a knowledgeable businessperson familiar with the value of the tools and materials of his trade. The jury could reasonably infer from each victim's testimony that the expensive property in question could not have depreciated to such a small fraction of its original value by the time of the thefts that the $ 3000 statutory was not met.
However, we agree with defendant's unpreserved argument that there was insufficient evidence of burglary and unauthorized use of a vehicle regarding the June 12, 2014 incident. As to that incident, the evidence, even when viewed in the light most favorable to the People, only established that defendant was one of the men who unloaded a stolen van, but not that he entered or operated it.
Defendant was charged in a single indictment with counts relating to seven incidents involving stolen vans, and these incidents involved mutually admissible evidence, including videotapes, that established defendant's identity (see e. g. People v. Mitchell , 24 A.D.3d 103, 104, 806 N.Y.S.2d 187 [1st Dept. 2005], lv denied 6 N.Y.3d 778, 811 N.Y.S.2d 345, 844 N.E.2d 800 [2006] ; People v. Scott , 276 A.D.2d 380, 714 N.Y.S.2d 478 [1st Dept. 2000], lv denied 96 N.Y.2d 738, 722 N.Y.S.2d 806, 745 N.E.2d 1029 [2001] ). Joinder of these counts was proper under both CPL 200.20(2)(b) and (2)(c), and the court providently exercised its discretion in denying defendant's motion for severance.
The hearing court properly denied defendant's motion to suppress identification testimony. We have examined the photo array at issue, in which the photographs depict persons of varying skin tones and display varying lighting effects. We conclude that any difference in the skin tones and lighting effects was not noticeable enough to create a substantial likelihood that defendant would be singled out for identification (see generally People v. Chipp , 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). Moreover, although suggestiveness does not turn solely on this factor ( People v. Perkins , 28 N.Y.3d 432, 45 N.Y.S.3d 860, 68 N.E.3d 679 [2016] ), the alleged deficiencies in the photo array were unrelated to the description that had been provided by the identifying witness.
The court properly exercised its discretion in denying defendant's CPL 440.10 motion without holding a hearing (see People v. Samandarov , 13 N.Y.3d 433, 439–440, 892 N.Y.S.2d 823, 920 N.E.2d 930 [2009] ). The submissions on the motion, along with the trial record, were sufficient to support the conclusion that defendant received effective assistance under the state and federal standards (see People v. Benevento , 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]. Defendant has not shown that any of counsel's alleged deficiencies fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived him of a fair trial or affected the outcome of the case, or that a hearing was necessary to resolve any such issues.
We perceive no basis for reducing the sentence.
Defendant's pro se contentions are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits.