Opinion
946 KA 16–00219
09-28-2018
The PEOPLE of the State of New York, Respondent, v. Amandalee LARREGUI, Defendant–Appellant.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
CATHERINE H. JOSH, ROCHESTER, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of, inter alia, robbery in the first degree ( Penal Law § 160.15[3] ), under a theory of accomplice liability (see § 20.00). The case arose from an incident in which two women posing as prostitutes lured the victim into an ambush by two or three masked men, who assaulted the victim with a piece of metal rebar, held a gun to his head, and stole $200 in cash. Two of the alleged accomplices entered pleas of guilty and agreed to testify against defendant and two other alleged accomplices, who were indicted and tried jointly.
Defendant contends that the evidence is legally insufficient to support the conviction because the testimony of her accomplices was not supported by the requisite corroborative evidence (see CPL 60.22[1] ). That contention is not preserved for our review inasmuch as defendant's motion for a trial order of dismissal was not " ‘specifically directed’ at [that] alleged error" ( People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, the testimony of the victim, as well as that of an eyewitness who observed defendant and her accomplices emerge from the place where the robbery had occurred, " ‘tend[ed] to connect the defendant with the commission of the crime in such a way as [could] reasonably satisfy the jury that the accomplice[s] [were] telling the truth’ " ( People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] ; see CPL 60.22[1] ; People v. Hilkert, 145 A.D.3d 1609, 1609–1610, 42 N.Y.S.3d 901 [4th Dept. 2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 380, 76 N.E.3d 1083 [2017] ).
Defendant further contends that the guilty verdict was repugnant because one of her codefendants was acquitted on all counts of the indictment. That contention also is not preserved for our review inasmuch as defendant " ‘failed to object to the alleged repugnancy of the verdict before the jury was discharged’ " ( People v. Madore, 145 A.D.3d 1440, 1441, 46 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017] ). In any event, the jury verdict acquitting that codefendant does not negate a necessary element of the crimes of which defendant was convicted (see People v. McLaurin, 50 A.D.3d 1515, 1516, 856 N.Y.S.2d 773 [4th Dept. 2008] ; see generally People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981], rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 [1982] ).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury (see People v. Woolson, 122 A.D.3d 1353, 1355, 997 N.Y.S.2d 865 [4th Dept. 2014], lv denied 25 N.Y.3d 1078, 12 N.Y.S.3d 630, 34 N.E.3d 381 [2015] ; see also People v. Gibson, 89 A.D.3d 1514, 1515, 934 N.Y.S.2d 633 [4th Dept. 2011], lv denied 18 N.Y.3d 924, 942 N.Y.S.2d 463, 965 N.E.2d 965 [2012] ), and we decline to disturb the jury's determination.
Defendant contends that Supreme Court abused its discretion in allowing the eyewitness to testify about an incident that occurred nearly one month after the robbery (see generally People v. Molineux, 168 N.Y. 264, 293–294, 61 N.E. 286 [1901] ). Specifically, the eyewitness testified that defendant came to the eyewitness's home, tried to break down the door, and threatened the eyewitness with violence for talking to the police. Contrary to the People's assertion, defendant preserved her contention for our review (see CPL 470.05[2] ). Nevertheless, we reject her contention. " ‘Evidence of threats made by the defendant against one of the People's witnesses, although evidence of prior bad acts, [is] admissible on the issue of consciousness of guilt’ " ( People v. Pugh, 236 A.D.2d 810, 812, 653 N.Y.S.2d 994 [4th Dept. 1997], lv denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994 [1997] ; see People v. McCommons, 143 A.D.3d 1150, 1154, 40 N.Y.S.3d 578 [3d Dept. 2016], lv denied 29 N.Y.3d 999, 57 N.Y.S.3d 720, 80 N.E.3d 413 [2017] ). We conclude that the court did not abuse its discretion in determining that the probative value of that evidence outweighed its potential for prejudice (see generally People v. Cass, 18 N.Y.3d 553, 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ).
Defendant failed to preserve for our review her contention that the court abused its discretion in allowing the prosecutor to speak to the attorney of a prosecution witness during a recess in that witness's testimony (see People v. Cruz, 23 A.D.3d 1109, 1110, 807 N.Y.S.2d 763 [4th Dept. 2005], lv denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 [2006] ; see also People v. Williams, 56 A.D.3d 700, 700, 868 N.Y.S.2d 90 [2d Dept. 2008], lv denied 12 N.Y.3d 763, 876 N.Y.S.2d 715, 904 N.E.2d 852 [2009] ). In any event, that contention lacks merit. The prosecutor informed the court that the witness, who was one of defendant's alleged accomplices, was giving testimony contrary to what the witness had previously told the prosecutor. The court ruled that the witness's testimony would remain in the record, but allowed the prosecutor to speak to the witness's attorney, who in turn spoke to the witness. Thereafter, defense counsel cross-examined the witness regarding the nature of the latter conversation. Here, "[f]aced with the need to make sure the court's truth-seeking function was not impaired ... [,] the court chose a sound middle path that allowed the People a chance to rehabilitate their case to some extent, yet fully protected both defendant's right to cross-examination and the jury's authority to make informed determinations as to facts and credibility" ( People v. Branch, 83 N.Y.2d 663, 667, 612 N.Y.S.2d 365, 634 N.E.2d 966 [1994] ). Thus, we conclude that the court's ruling was not an abuse of discretion (see id. at 668, 612 N.Y.S.2d 365, 634 N.E.2d 966 ; People v. Clark, 139 A.D.3d 1368, 1370, 31 N.Y.S.3d 357 [4th Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016] ).
Defendant also failed to preserve for our review her contention that prosecutorial misconduct deprived her of a fair trial inasmuch as she failed to object to any of the alleged improprieties (see People v. Lewis, 140 A.D.3d 1593, 1595, 34 N.Y.S.3d 806 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ; People v. Simmons, 133 A.D.3d 1227, 1228, 18 N.Y.S.3d 808 [4th Dept. 2015] ). In any event, we conclude that " ‘[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial’ " ( People v. Pendergraph, 150 A.D.3d 1703, 1704, 54 N.Y.S.3d 257 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017] ).
We reject defendant's contention that she was denied effective assistance of counsel. Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
We also reject defendant's contention that the cumulative effect of the court's alleged errors deprived her of a fair trial (see People v. Boyd, 159 A.D.3d 1358, 1359–1360, 73 N.Y.S.3d 301 [4th Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ; People v. Spirles, 136 A.D.3d 1315, 1317, 25 N.Y.S.3d 462 [4th Dept. 2016], lv denied 27 N.Y.3d 1007, 38 N.Y.S.3d 116, 59 N.E.3d 1228 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 298, 196 L.Ed.2d 220 [2016] ). Finally, the sentence is not unduly harsh or severe.