Opinion
11260 Ind. 2205/13
03-12-2020
The PEOPLE of the State of New York, Respondent, v. David SMITH, Defendant–Appellant.
Christina Swarns, Office of The Appellate Defender, New York (Kami Lizarraga of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent.
Christina Swarns, Office of The Appellate Defender, New York (Kami Lizarraga of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent.
Friedman, J.P., Kapnick, Oing, Gonza´lez, JJ.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered December 12, 2014, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second felony offender, to a term of nine years, unanimously affirmed.
The verdict 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] ). On the contrary, the evidence of defendant's guilt was overwhelming. There is no basis for disturbing the jury's determinations regarding identification and credibility. The victim's testimony was corroborated by that of a police sergeant who observed the robbery, as well as by the recovery of incriminating evidence from defendant and his codefendant immediately after the crime.
Defendant did not preserve his challenge to trial testimony that the People had agreed not to introduce, and which therefore had never been the subject of an otherwise-required suppression hearing, and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal. It was defense counsel who first introduced this evidence on cross-examination, thereby opening the door to the People's appropriate clarification of the issue on redirect, as well as through another witness. In any event, any error was harmless (see People v. Crimmins , 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). We have considered and rejected defendant's ineffective assistance of counsel claim relating to this issue (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] ).
We perceive no basis for reducing the sentence.