Opinion
2013-01-9
The PEOPLE, etc., respondent, v. Robert E. WHITTLE, appellant.
Neal D. Futerfas, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio and Steven A. Bender of counsel), for respondent.
Neal D. Futerfas, White Plains, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio and Steven A. Bender of counsel), for respondent.
WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered April 16, 2010, convicting him of burglary in the second degree, robbery in the third degree, criminal possession of stolen property in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical and identification evidence and his statements to law enforcement officers.
ORDERED that the judgment is affirmed.
The hearing court properly denied those branches of the defendant's omnibus motion which were to suppress physical and identification evidence and his statements to law enforcement officers on the ground that he was unlawfully seized. The police had the requisite reasonable suspicion to stop and detain the defendant for a showup identification procedure based on the defendant's appearance, which matched a general description of the perpetrator broadcast over the police radio, the defendant's temporal and spacial proximity to the crime scene, and the defendant's actions in looking back in the direction of the crime scene and throwing items into a garbage can ( see People v. Wellington, 84 A.D.3d 984, 986, 923 N.Y.S.2d 581;People v. Hicks, 78 A.D.3d 1075, 1075–1076, 913 N.Y.S.2d 237;People v. Mais, 71 A.D.3d 1163, 1164, 897 N.Y.S.2d 716).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 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 ( seeCPL 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. denied542 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).
To the extent the defendant contends that the prosecutor's conduct on cross examination deprived him of a fair trial, his contention is unpreserved for appellate review ( seeCPL 470.05[2]; see also People v. Damon, 78 A.D.3d 860, 911 N.Y.S.2d 127), and, in any event, is without merit. With regard to the prosecutor's comments on summation, most of the challenged comments were fair comment on the evidence or fair response to the arguments and issues the defense raised. Although two of the prosecutor's comments on summation were improper, they did not deprive the defendant of a fair trial ( see People v. Bajana, 82 A.D.3d 1111 at 1112, 919 N.Y.S.2d 194;People v. Damon, 78 A.D.3d at 861, 911 N.Y.S.2d 127;People v. Garcia–Villegas, 78 A.D.3d 727, 728, 909 N.Y.S.2d 660;People v. Valerio, 70 A.D.3d 869, 894 N.Y.S.2d 157;People v. Hendrix, 60 A.D.3d 1081, 1082–1083, 876 N.Y.S.2d 154;People v. Philbert, 60 A.D.3d 698, 699, 874 N.Y.S.2d 540;People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95).
The defendant's challenges to the constitutionality of New York's persistent violent felony offender statute are without merit ( see People v. Bell, 15 N.Y.3d 935, 915 N.Y.S.2d 208, 940 N.E.2d 913,cert. denied––– U.S. ––––, 131 S.Ct. 2885, 179 L.Ed.2d 1197;People v. Leon, 10 N.Y.3d 122, 855 N.Y.S.2d 38, 884 N.E.2d 1037,cert. denied 554 U.S. 926, 128 S.Ct. 2976, 171 L.Ed.2d 900;People v. Haynes, 92 A.D.3d 695, 937 N.Y.S.2d 891;People v. Winfield, 63 A.D.3d 969, 970, 880 N.Y.S.2d 548). Moreover, the sentencing court properly adjudicated the defendant a persistent violent felony offender ( see People v. Ford, 91 A.D.3d 968, 969, 937 N.Y.S.2d 621).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit.