Opinion
17619 Ind. No. 731/15 Case No. 2017–01283
03-30-2023
The PEOPLE of the State of New York, Respondent, v. Malkim HURT, Defendant–Appellant.
Mark W. Zeno, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.
Mark W. Zeno, Center for Appellate Litigation, New York (Shaina R. Watrous of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Webber, Friedman, Rodriguez, JJ.
Judgment, Supreme Court, New York County (Robert M. Stolz, J. at consolidation motion; Juan M. Merchan, J. at hearing, jury trial and sentencing), rendered September 29, 2016, convicting defendant of robbery in the second degree, and sentencing defendant, as a second violent felony offender, to a term of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to 8 years, and otherwise affirmed.
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] ). There is no basis for disturbing the jury's determinations concerning identification and credibility. Although the victim was unable to identify his attackers at the time of trial, he identified defendant in a lineup a few days after the robbery, and the identification was corroborated by strong circumstantial inferences of guilt that could be drawn from surveillance videos and telephone records.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ; People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ). Accordingly, because defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find 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] ). In particular, defendant has not shown a reasonable possibility that counsel could have succeeded in obtaining suppression of the victim's lineup identification on the ground of suggestiveness (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] ).
The motion court providently exercised its discretion in consolidating the instant indictment with another robbery indictment as similar in law (see CPL 200.20[2][c] ). "[T]here was no material variance in the quantity of proof for the separate incidents. Moreover, the evidence as to the two crimes was presented separately and was readily capable of being segregated in the minds of the jury" ( People v. Ford, 11 N.Y.3d 875, 879, 874 N.Y.S.2d 859, 903 N.E.2d 256 [2008] ). Furthermore, the jury acquitted defendant of the other robbery, which "strongly indicates that [the defendant] was not prejudiced by the joint trial" (see People v. Mathis, 37 A.D.3d 212, 213, 829 N.Y.S.2d 98 [1st Dept. 2007], lv denied 8 N.Y.3d 987, 838 N.Y.S.2d 490, 869 N.E.2d 666 [2007] ). The People did not make a propensity argument based on the presence of two robbery charges, but only made permissible, record-based arguments about some overlapping evidence. Although the motion court did not grant consolidation on an overlapping evidence theory (see CPL 200.20[2][b] ), this did not limit the trial court's independent discretion to permit otherwise appropriate arguments in this regard (see People v. Evans, 94 N.Y.2d 499, 504–506, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ), and the court's charge sufficiently cautioned the jury to avoid any inference of criminal propensity.
Defendant's other challenges to the prosecutor's summation are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
We find the sentence excessive to the extent indicated.