Opinion
105225
11-20-2014
The PEOPLE of the State of New York, Respondent, v. Lacedric GRIFFIN, Appellant.
Salvatore Adamo, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Salvatore Adamo, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and DEVINE, JJ.
Opinion
STEIN, J.Appeal from a judgment of the Supreme Court (Teresi, J.), rendered June 26, 2012 in Albany County, upon a verdict convicting defendant of the crime of robbery in the second degree.
On the evening of April 9, 2011, two men with their faces covered entered a neighborhood grocery store/deli and attacked the owner of the store. During the struggle that ensued, the victim pulled off the mask worn by one of the perpetrators and the two assailants exited the store with more than $300, leaving the mask behind. Subsequent testing of DNA recovered from the mask was linked to defendant and he was arrested. Defendant was ultimately charged in a two-count indictment with robbery in the second and third degrees. Following a jury trial, defendant was convicted of robbery in the second degree, and his subsequent motion to set aside the verdict was denied. Supreme Court thereafter sentenced defendant, as a second felony offender, to 15 years in prison, to be followed by five years of postrelease supervision. Defendant now appeals, and we affirm.
Initially, we reject defendant's contention that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to establish beyond a reasonable doubt his identity as the masked perpetrator. Robbery in the second degree requires the People to prove that a defendant forcibly stole property while being aided by another person actually present (see Penal Law § 160.10[1] ; People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ). A person forcibly steals property when “he [or she] uses or threatens the immediate use of physical force upon another person for the purpose of ... [c]ompelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny” (Penal Law § 160.00[2] ; see People v. Gordon, 23 N.Y.3d at 649–650, 992 N.Y.S.2d 700, 16 N.E.3d 1178 ; People v. Smith, 22 N.Y.3d 1092, 1094, 982 N.Y.S.2d 437, 5 N.E.3d 584 [2014] ).
At trial, the People presented evidence that, on the evening in question, two men entered the store, each with his face covered. One of the perpetrators wore a mask and attacked the victim, while the other, who wore a scarf over his face, grabbed the money. As the victim was fighting back, he took hold of the assailant's mask and pulled it off of his head. The second perpetrator also fought with the victim, and the two assailants then left the store with the money, but without the mask. The police responded to the victim's 911 call, documented the victim's statement—which included a description of the assailants' ethnicity and general build—and recovered the mask. However, the victim did not see either perpetrator's face and was unable to identify defendant in various photo arrays presented by the police.
To establish defendant's identity as the masked man at trial, the People called as a witness Kristine Robinson, a forensic scientist at the New York State Police Forensic Investigation Center, who performed DNA testing on the mask. Robinson testified that testing of the DNA found on the inside of the mask revealed more than one person's DNA, but that defendant's DNA was consistent with that of a major contributor who left 90% of the total DNA on the inside of the mask. Robinson also testified that the last person wearing the mask would have deposited more DNA, and ultimately concluded that the chances of someone other than defendant being the major contributor of DNA was less than one in 300 billion. The victim also testified that, while he did not see the perpetrator's face, defendant matched the size and height of the perpetrator who wore the mask. This evidence was more than sufficient to establish defendant's identity as the mask-wearing perpetrator (see People v. Dearmas, 48 A.D.3d 1226, 1228, 851 N.Y.S.2d 805 [2008], lv. denied 10 N.Y.3d 839, 859 N.Y.S.2d 398, 889 N.E.2d 85 [2008] ). Thus, viewing the evidence in the light most favorable to the People, we find that there was legally sufficient proof of each element of the crime of robbery in the second degree to sustain defendant's conviction (see People v. Gordon, 23 N.Y.3d at 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; People v. Horton, 106 A.D.3d 1192, 1193–1194, 964 N.Y.S.2d 757 [2013], lv. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 498, 994 N.E.2d 394 [2013] ; People v. Valderrama, 285 A.D.2d 902, 903–904, 728 N.Y.S.2d 812 [2001], lv. denied 97 N.Y.2d 659, 737 N.Y.S.2d 60, 762 N.E.2d 938 [2001] ). In addition, while a different verdict would not have been unreasonable, when we view the evidence in a neutral light and accord appropriate deference to the jury's credibility assessments, we are satisfied that the verdict is in accord with the weight of the evidence (see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; People v. Walker, 117 A.D.3d 1094, 1095–1096, 985 N.Y.S.2d 166 [2014] ; People v. Pope, 96 A.D.3d 1231, 1234, 947 N.Y.S.2d 634 [2012], lv. denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ; People v. Valderrama, 285 A.D.2d at 904, 728 N.Y.S.2d 812 ).
We also reject defendant's argument that he was denied the effective assistance of counsel. To this end, defendant alleges a single error on counsel's part, namely, counsel's decision to elicit testimony from a police detective regarding defendant's prior criminal history. “When reviewing a claim of ineffective assistance of counsel, courts must avoid confusing actual ineffectiveness with mere losing tactics, and a defendant must demonstrate the absence of strategic or reasonable explanations for counsel's alleged shortcomings” (People v. McCloud, 121 A.D.3d 1286, 1291, 995 N.Y.S.2d 269 [2014] ; see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; People v. Desmond, 118 A.D.3d 1131, 1135, 988 N.Y.S.2d 703 [2014] ). Here, defense counsel acknowledged at trial that he elicited the challenged testimony as part of a chosen and purposeful course of action, designed to show that defendant had never previously been convicted of robbery or another violent crime (see generally People v. Lane, 83 A.D.3d 1118, 1119, 921 N.Y.S.2d 343 [2011], lv. denied 17 N.Y.3d 818, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011] ). In fact, counsel also elected to have the jury view defendant's interview with police, during which defendant discussed his prior felony drug conviction, and requested that appropriate limiting instructions be given relative to the jury's consideration of defendant's criminal history. Further, defendant independently informed Supreme Court on multiple occasions that he consented to the jury seeing the recorded interview, including his statement regarding his prior conviction. The record also confirms that trial counsel zealously advocated for defendant by, among other things, conducting effective cross-examination, offering thoughtful opening and closing arguments and making appropriate trial and posttrial motions. Thus, when we consider counsel's representation as a whole, we find that defendant received meaningful representation (see People v. Blake, 24 N.Y.3d 78, 79–81, 996 N.Y.S.2d 585, 20 N.E.3d 214 [2014] ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; People v. Desmond, 118 A.D.3d at 1135–1136, 988 N.Y.S.2d 703 ).
We are unpersuaded by defendant's further contention that his sentence was harsh and excessive and an abuse of Supreme Court's discretion. To the extent argued, the record does not support a claim that the sentence was vindictive or a punishment for defendant's assertion of his constitutional right to a trial (see People v. Shoemaker, 119 A.D.3d 1073, 1077, 989 N.Y.S.2d 539 [2014] ; People v. Foulkes, 117 A.D.3d 1176, 1177, 986 N.Y.S.2d 634 [2014] ). While defendant received the maximum permissible sentence (see Penal Law §§ 70.06[3] [c] ; 160.10), it appropriately reflects the court's consideration of defendant's extensive criminal history—including a prior drug felony and a parole violation—his physical attack on the victim and his failure to accept responsibility for the crime. Thus, we find no abuse of discretion or extraordinary circumstances that would warrant a reduction of the sentence (see People v. Sheppard, 119 A.D.3d 986, 987, 989 N.Y.S.2d 168 [2014] ; People v. Castellano, 100 A.D.3d 1256, 1258, 954 N.Y.S.2d 677 [2012], lv. denied 20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013] ). We have examined the remaining arguments raised in defendant's pro se supplemental brief, including his statutory speedy trial claim, and find them to be lacking in merit.
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, EGAN JR. and DEVINE, JJ., concur.