Opinion
2012-02-21
The PEOPLE, etc., respondent, v. Roberto RODRIGUEZ, appellant.
Steven Banks, New York, N.Y. (Paul Wiener of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
Steven Banks, New York, N.Y. (Paul Wiener of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Howard B. Goodman of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered February 18, 2009, convicting him of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel as a result of his trial counsel's failure to move for a severance of his trial from that of his codefendant ( see People v. Velez, 78 A.D.3d 1522, 1522–1523, 911 N.Y.S.2d 530; People v. Alvarenga, 25 A.D.3d 560, 561, 806 N.Y.S.2d 416; People v. Ruger, 288 A.D.2d 686, 687, 732 N.Y.S.2d 727). “Nor does the defendant's disagreement with his trial counsel's tactics on cross-examination render the representation less than meaningful” ( People v. Alvarenga, 25 A.D.3d at 561, 806 N.Y.S.2d 416; see People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Aiken, 45 N.Y.2d 394, 400, 408 N.Y.S.2d 444, 380 N.E.2d 272; People v. DiCarlo, 293 A.D.2d 279, 280–281, 741 N.Y.S.2d 508). Moreover, the defendant's contention that, during summation, his counsel mischaracterized a witness's testimony is without merit. Viewing the record as a whole, we conclude that the defendant received effective assistance of counsel under both federal and state standards ( see Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Caban, 5 N.Y.3d 143, 152–156, 800 N.Y.S.2d 70, 833 N.E.2d 213; People v. Tomlinson, 67 A.D.3d 826, 827, 887 N.Y.S.2d 862; People v. Ross, 209 A.D.2d 730, 619 N.Y.S.2d 321).
The defendant's challenge to the sufficiency of the evidence, raised in his pro se supplemental brief, is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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).
Further, contrary to the defendant's contention, raised in his pro se supplemental brief, the trial court did not err in refusing to give an intoxication charge to the jury ( see Penal Law § 15.25). Viewing the intoxication evidence in the light most favorable to the defendant ( see People v. Sirico, 17 N.Y.3d 744, 745, 929 N.Y.S.2d 14, 952 N.E.2d 1006), we find that it was insufficient to allow a reasonable person to entertain doubt as to the element of intent based on intoxication ( id.; see People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954; People v. Oddone, 89 A.D.3d 868, 932 N.Y.S.2d 149; People v. Albanese, 84 A.D.3d 1107, 1108, 922 N.Y.S.2d 813; People v. Brown, 73 A.D.3d 940, 940–941, 899 N.Y.S.2d 877).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).