Opinion
2013-12-27
The PEOPLE of the State of New York, Respondent, v. Everett M. DURANT, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of Counsel), for Respondent.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of robbery in the second degree (Penal Law § 160.10 [1] ). Viewing the evidence in light of the contested element of larcenous intent as charged to the jury ( see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's 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). “Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence, the appellate court must give [g]reat deference ... [to the] fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor” (People v. McMillon, 77 A.D.3d 1375, 1376, 909 N.Y.S.2d 267, lv. denied16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981 [internal quotation marks omitted] ). While a finding that defendant did not have the requisite intent would not have been unreasonable, “it cannot be said that the jury failed to give the evidence the weight it should be accorded” ( id.). The victim testified that defendant stole his wallet during a group assault on him, and the People presented evidence establishing that defendant “knowingly participated and continued to participate even after his companion[s'] intentions [to take the victim's cell phone] became clear” and thus “shared a ‘community of purpose’ with his companion[s]” (People v. Allah, 71 N.Y.2d 830, 832, 527 N.Y.S.2d 731, 522 N.E.2d 1029). Contrary to defendant's further contention, County Court properly denied his request for an adverse inference charge concerning the failure of the police to record his interrogation electronically ( see McMillon, 77 A.D.3d at 1375, 909 N.Y.S.2d 267; People v. Hammons, 68 A.D.3d 1800, 1801, 892 N.Y.S.2d 690, lv. denied14 N.Y.3d 801, 899 N.Y.S.2d 135, 925 N.E.2d 939).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.