Opinion
01-05-2017
The PEOPLE of The State of New York, Respondent, v. Antwoine FORT, Appellant.
Perfetti Law Office, Cortland (Patrick A. Perfetti of counsel), for appellant. Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), for respondent.
Perfetti Law Office, Cortland (Patrick A. Perfetti of counsel), for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), for respondent.
Before: EGAN Jr., J.P., LYNCH, ROSE, CLARK and AARONS, JJ.
ROSE, J.Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered August 12, 2013, upon a verdict convicting defendant of the crime of attempted robbery in the first degree.
Defendant was charged by indictment with robbery in the first degree based upon allegations that he had threatened a taxicab driver (hereinafter the victim) with a weapon, demanded money and, when the victim fled from the taxicab, stole personal property that the victim had left behind. The victim later identified defendant from a photo array and in a lineup. Following a jury trial, defendant was acquitted of robbery in the first degree, but convicted of the lesser included offense of attempted robbery in the first degree. His subsequent motion to set aside the verdict was denied (see CPL 330.30[1], [3] ), and he now appeals.
There is no merit to defendant's contention that County Court abused its discretion by denying his pre-lineup request to employ a sequential double-blind lineup procedure (see People v. Washington, 40 A.D.3d 1136, 1136, 837 N.Y.S.2d 272 [2007], lv. denied 9 N.Y.3d 883, 842 N.Y.S.2d 795, 874 N.E.2d 762 [2007] ; People v. McLaughlin, 8 A.D.3d 146, 147, 780 N.Y.S.2d 119 [2004], lvs. denied 3 N.Y.3d 678, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004], 3 N.Y.3d 741, 786 N.Y.S.2d 820, 820 N.E.2d 299 [2004] ; People v. Robinson, 8 A.D.3d 95, 96, 778 N.Y.S.2d 151 [2004], lv. denied 3 N.Y.3d 742, 786 N.Y.S.2d 821, 820 N.E.2d 300 [2004] ). Notably, he does not argue that the lineup procedure used was unduly suggestive (see generally People v. Delamota, 18 N.Y.3d 107, 117–118, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ).
We also reject defendant's contention that the People failed to lay a proper evidentiary foundation for the admission of exhibits that were created from surveillance footage in front of the bar where defendant first entered the victim's taxicab. A detective, an investigator and two employees from the bar testified in detail about the surveillance system, the utilization of the system to create a flash drive and video disc, and the printing of a series of still photographs from the video. Accordingly, the exhibits were properly admitted into evidence (see People v. Cabrera, 137 A.D.3d 707, 707–708, 28 N.Y.S.3d 681 [2016], lv. denied 27 N.Y.3d 1129, 39 N.Y.S.3d 111, 61 N.E.3d 510 [2016] ; People v. Junior, 119 A.D.3d 1228, 1231, 990 N.Y.S.2d 689 [2014], lv. denied 24 N.Y.3d 1044, 998 N.Y.S.2d 314, 23 N.E.3d 157 [2014] ; see also People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 [1999] ).
Nor can we agree with the argument that County Court erred in submitting the charge of attempted robbery in the first degree to the jury as a lesser included offense and that, instead, the court should have submitted petit larceny. Inasmuch as both crimes are lesser included offenses of robbery in the first degree (see People v. King, 48 A.D.3d 1177, 1178, 851 N.Y.S.2d 766 [2008] ; People v. Gilliam, 300 A.D.2d 701, 702, 752 N.Y.S.2d 722 [2002], lv. denied 99 N.Y.2d 628, 760 N.Y.S.2d 109, 790 N.E.2d 283 [2003] ), we must consider whether " ‘there is a reasonable view of the evidence which would support a finding that ... defendant committed such lesser offense but did not commit the greater’ " (People v. Colville, 20 N.Y.3d 20, 31 [2012], quoting CPL 300.50[1] ; see People v. Green, 141 A.D.3d 1036, 1041, 36 N.Y.S.3d 312 [2016], lv. denied 28 N.Y.3d 1072, –––N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). Beginning with the attempt charge, the record confirms that there was a reasonable view of the evidence that would suggest that defendant did not steal the victim's personal property from the taxicab and, instead, only demanded money from the victim, without success (see Penal Law §§ 110.00, 160.15[4] ; People v. Felix, 56 A.D.3d 796, 797, 868 N.Y.S.2d 288 [2008], lv. denied 12 N.Y.3d 816, 881 N.Y.S.2d 23, 908 N.E.2d 931 [2009] ). Turning to petit larceny, we agree with County Court that there was no reasonable view of the evidence that would support a finding that defendant committed petit larceny, but not robbery in the first degree. The victim's uncontroverted testimony established that defendant displayed what appeared to be a firearm and "there was no reason for the jury to selectively discredit only that portion of his testimony" (People v. James, 47 A.D.3d 506, 507, 849 N.Y.S.2d 257 [2008], affd. 11 N.Y.3d 886, 874 N.Y.S.2d 864, 903 N.E.2d 261 [2008] ; see People v. Monroe, 30 A.D.3d 616, 617–618, 817 N.Y.S.2d 150 [2006], lv. denied 7 N.Y.3d 815, 822 N.Y.S.2d 490, 855 N.E.2d 806 [2006] ; compare People v. Smith, 214 A.D.2d 971, 972, 626 N.Y.S.2d 915 [1995], lv. denied 86 N.Y.2d 847, 634 N.Y.S.2d 456, 658 N.E.2d 234 [1995] ).
Defendant's remaining contention that County Court erred in denying his motion to set aside the verdict based upon newly discovered evidence is presented for the first time on appeal as a purported Brady violation and is, therefore, unpreserved for our review (see People v. Thompson, 54 A.D.3d 975, 976, 863 N.Y.S.2d 824 [2008], lv. denied 11 N.Y.3d 858, 872 N.Y.S.2d 81, 900 N.E.2d 564 [2008] ; People v. Kearney, 39 A.D.3d 964, 966, 833 N.Y.S.2d 734 [2007], lv. denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007] ). Were we to review it, we would find that no Brady violation occurred because the evidence at issue was immaterial (see People v. Anderson, 118 A.D.3d 1138, 1142, 987 N.Y.S.2d 681 [2014], lv. denied 24 N.Y.3d 1117, 3 N.Y.S.3d 759, 27 N.E.3d 473 [2015] ; see generally People v. Hayes, 17 N.Y.3d 46, 50, 926 N.Y.S.2d 382, 950 N.E.2d 118 [2011], cert. denied ––– U.S. ––––, 132 S.Ct. 844, 181 L.Ed.2d 553 [2011] ).
ORDERED that the judgment is affirmed.
EGAN JR., J.P., LYNCH, CLARK and AARONS, JJ., concur.