Opinion
10-12-2016
The PEOPLE, etc., respondent, v. James DRUMMOND, appellant.
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Arieh Schulman of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Arieh Schulman of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered May 29, 2013, convicting him of robbery in the first degree (two counts) and robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his convictions of robbery in the first degree (two counts) and robbery in the second degree on the ground that the prosecution failed to establish his identity as one of the perpetrators of those crimes is unpreserved for appellate review (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Wiggs, 130 A.D.3d 659, 659, 14 N.Y.S.3d 53, lv. granted 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 ; People v. Wright, 105 A.D.3d 876, 961 N.Y.S.2d 803 ; People v. Harrison, 22 A.D.3d 236, 803 N.Y.S.2d 5 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's identity beyond a reasonable doubt. Contrary to the defendant's contention, although the complainants were unable to positively identify him, the circumstantial evidence, including the DNA evidence linking the defendant to the crime, established a prima facie case as to identity (see People v. Moss, 138 A.D.3d 761, 29 N.Y.S.3d 452 ; People v. Ross, 118 A.D.3d 1413, 1414, 988 N.Y.S.2d 756 ; People v. Burroughs, 108 A.D.3d 1103, 1106, 968 N.Y.S.2d 773 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the Supreme Court's Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 ) was coercive and unbalanced is unpreserved for appellate review, as defense counsel neither requested a specific charge nor objected to the charge given by the court (see CPL 470.05[2] ; People v. Smith, 135 A.D.3d 970, 971, 23 N.Y.S.3d 391 ; People v. Terry, 122 A.D.3d 882, 883, 996 N.Y.S.2d 362 ; People v. Auguste, 294 A.D.2d 371, 372, 741 N.Y.S.2d 700 ). In any event, such instructions are proper provided they do not (1) urge a dissenting juror to abandon his or her convictions and join in the opinion of other jurors, (2) attempt to coerce or compel the jury to reach a particular verdict, or (3) shame the jury into reaching a verdict (see People v. Smith, 135 A.D.3d at 971, 23 N.Y.S.3d 391; People v. Bastien, 180 A.D.2d 691, 692, 580 N.Y.S.2d 54 ). Here, the court's charge was balanced and proper, and was directed to all jurors in general. In essence, the court encouraged the jurors to fulfill their oaths by openly and carefully listening to each other's positions, and did not urge that a dissenting juror abandon his or her own conviction, attempt to coerce or compel the jury to reach a particular verdict, or shame the jury into reaching a verdict (see People v. Muirhead, 110 A.D.3d 833, 834–835, 972 N.Y.S.2d 681 ; People v. McKenzie, 48 A.D.3d 594, 595, 852 N.Y.S.2d 217 ; People v. Auguste, 294 A.D.2d at 372, 741 N.Y.S.2d 700 ; People v. Kendrick, 256 A.D.2d 420, 421, 682 N.Y.S.2d 234 ; People v. Denham, 179 A.D.2d 673, 579 N.Y.S.2d 896 ). The court also properly defined reasonable doubt in the Allen charge as a doubt, based upon the evidence or lack of evidence, for which a juror can give a reason if he or she was called upon to do so (see People v. Henderson, 50 A.D.3d 525, 856 N.Y.S.2d 97 ; People v. Osborne, 248 A.D.2d 491, 669 N.Y.S.2d 510 ; see also People v. Antommarchi, 80 N.Y.2d 247, 252, 590 N.Y.S.2d 33, 604 N.E.2d 95 ).
As the Allen charge was not improper, the defendant's ineffective assistance of counsel claim, based solely on his attorney's failure to object to a portion of that charge, is without merit (see People v. Smith, 135 A.D.3d at 97, 23 N.Y.S.3d 3911; People v. Muirhead, 110 A.D.3d at 835, 972 N.Y.S.2d 681 ).
The defendant's contention that he was improperly adjudicated a persistent violent felony offender is also unpreserved for appellate review because he did not contend during the sentencing hearing that his prior conviction for criminal possession of a weapon in the third degree pursuant to former Penal Law § 265.02(4) was not a predicate violent felony conviction (see People v. Moshier, 110 A.D.3d 832, 833, 972 N.Y.S.2d 675 ; People v. Delston, 30 A.D.3d 536, 818 N.Y.S.2d 223 ). In any event, the Supreme Court properly adjudicated the defendant a persistent violent felony offender (see Penal Law § 70.08 ). The defendant's prior conviction of criminal possession of a weapon in the third degree pursuant to former Penal Law § 265.02(4), which was recodified in 2006 as the crime of criminal possession of a weapon in he second degree (see Penal Law § 265.03[3] ), was properly considered a predicate violent felony conviction (see People v. Smith, 27 N.Y.3d 652, 670, 36 N.Y.S.3d 861, 57 N.E.3d 53 ; People v. Olivier, 134 A.D.3d 479, 21 N.Y.S.3d 69 ; People v. Thomas, 122 A.D.3d 489, 995 N.Y.S.2d 508 ; People v. Bowens, 120 A.D.3d 1148, 1149, 992 N.Y.S.2d 881 ).