Opinion
56 KA 18-01755
03-17-2023
The PEOPLE of the State of New York, Respondent, v. KEITH A.B., Jr., Defendant-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (PAUL SKIP LAISURE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the adjudication so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a youthful offender adjudication based upon a nonjury verdict finding him guilty of robbery in the second degree ( Penal Law § 160.10 [1] ). We affirm.
Defendant's contention regarding the legal sufficiency of the evidence is preserved only with respect to the issue of identity (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, his contention is without merit inasmuch as a rational trier of fact could have found that the victim's testimony and other evidence established each element of the crime, including defendant's identity as the perpetrator of the robbery, beyond a reasonable doubt (see People v. Withrow , 170 A.D.3d 1578, 1578-1579, 95 N.Y.S.3d 696 [4th Dept. 2019], lv denied 34 N.Y.3d 940, 109 N.Y.S.3d 740, 133 N.E.3d 444 [2019], reconsideration denied 34 N.Y.3d 1020, 114 N.Y.S.3d 745, 138 N.E.3d 474 [2019] ; People v. Maxwell , 103 A.D.3d 1239, 1240, 959 N.Y.S.2d 358 [4th Dept. 2013], lv denied 21 N.Y.3d 945, 968 N.Y.S.2d 7, 990 N.E.2d 141 [2013] ; see generally People v. Delamota , 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see Maxwell , 103 A.D.3d at 1240, 959 N.Y.S.2d 358 ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The victim "never wavered in [his] testimony regarding the events or [his] identification of defendant" as the person who forcibly stole from him ( People v. Cooper , 134 A.D.3d 1583, 1585, 22 N.Y.S.3d 751 [4th Dept. 2015] [internal quotation marks omitted]; see People v. Freeman , 206 A.D.3d 1694, 1695-1696, 170 N.Y.S.3d 445 [4th Dept. 2022] ). Moreover, "several aspects of the victim's account were corroborated by the testimony of other witnesses" and other evidence ( Maxwell , 103 A.D.3d at 1241, 959 N.Y.S.2d 358 ), including soundless video footage of the incident captured by an exterior surveillance system. The video footage also corroborates the victim's testimony that a second individual was "[k]eeping watch" during the robbery. Contrary to defendant's contention, the People were not required to establish that the second person actually prevented the victim from leaving the scene, or that the person interfered with anyone else who might have come to the victim's aid, in order to establish that defendant was "aided by another person actually present" for purposes of Penal Law § 160.10 (1) (see People v. McIntosh , 158 A.D.3d 1289, 1290, 71 N.Y.S.3d 778 [4th Dept. 2018], lv denied 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ). Here, the victim's testimony and the second individual's body language, as can be seen on the video, suggests that the second individual was well aware of defendant's plans, that he was indeed on the lookout, and that he would be available to render assistance if defendant needed it (see People v. White , 179 A.D.3d 1444, 1444, 118 N.Y.S.3d 823 [4th Dept. 2020], lv denied 35 N.Y.3d 945, 124 N.Y.S.3d 279, 147 N.E.3d 549 [2020] ; see also McIntosh , 158 A.D.3d at 1290, 71 N.Y.S.3d 778 ; see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel due to defense counsel's failure to pursue a suppression hearing with respect to certain physical evidence recovered from a search of an unrelated party's apartment. "To prevail on his claim of ineffective assistance of counsel, defendant ‘must demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to pursue colorable claims,’ and ‘[o]nly in the rare case will it be possible, based on the trial record alone, to deem [defense] counsel ineffective for failure to pursue a suppression [hearing]’ " ( People v. Roots , 210 A.D.3d 1532, 1533-1534, 178 N.Y.S.3d 671 [4th Dept. 2022], quoting People v. Carver , 27 N.Y.3d 418, 420, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] ). Here, we conclude that defendant failed to meet his burden, particularly inasmuch as the record indicates that defendant "had relatively tenuous ties to the apartment" in which the evidence was recovered ( People v. Ortiz , 83 N.Y.2d 840, 842, 611 N.Y.S.2d 500, 633 N.E.2d 1104 [1994] ) and the resident of the apartment consented to the search (see People v. Plumley , 111 A.D.3d 1418, 1419, 975 N.Y.S.2d 309 [4th Dept. 2013], lv denied 22 N.Y.3d 1140, 983 N.Y.S.2d 499, 6 N.E.3d 618 [2014] ; People v. Loomis , 17 A.D.3d 1019, 1020, 794 N.Y.S.2d 220 [4th Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ).