Opinion
2013-02-8
The PEOPLE of the State of New York, Respondent, v. Wilbert T. MAXWELL, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, upon a nonjury verdict, of robbery in the first degree (Penal Law § 160.15[4] ), defendant contends that the evidence is legally insufficient to support his conviction because the People failed to establish that the gun recovered by the police and allegedly used by defendant in the robbery was a “pistol, revolver, rifle, shotgun, machine gun, or other firearm” within the meaning of Penal Law § 160.15(4). We reject that contention. A person is guilty of robbery in the first degree pursuant to Penal Law § 160.15(4) “when he [or she] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [or she] ... [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm....” Thus, in order to convict defendant of that crime, County Court “was not required to find that defendant displayed an actual firearm during the commission of the crime, but only that [ ]he displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm” ( People v. Jennings, 279 A.D.2d 284, 285, 720 N.Y.S.2d 4,lv. denied96 N.Y.2d 830, 729 N.Y.S.2d 451, 754 N.E.2d 211), and there is ample evidence of that element. Indeed, the victim described the weapon used in the robbery as a “big black gun,” and she drew a picture of the gun, which was admitted in evidence. The investigating detective testified that, based upon that drawing, he believed that the weapon was a MAC–10, a machine-type pistol. The police subsequently recovered a loaded M–11 pistol in connection with another investigation, and the major DNA profile from that gun matched that of defendant. At trial, the victim identified the M–11 as the gun defendant pointed at her during the robbery. Defendant also contends that the evidence is legally insufficient to support the conviction because the victim's testimony lacked credibility. We reject that contention. The victim's testimony was not incredible as a matter of law “inasmuch as it was not impossible of belief, i.e., it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory” ( People v. Gaston, 100 A.D.3d 1463, 1464, 953 N.Y.S.2d 780 [internal quotation marks omitted]; see People v. Walker, 50 A.D.3d 1452, 1452–1453, 856 N.Y.S.2d 775,lv. denied11 N.Y.3d 795, 866 N.Y.S.2d 622, 896 N.E.2d 108,reconsideration denied11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450;People v. Olivero, 289 A.D.2d 1082, 1083, 735 N.Y.S.2d 327,lv. denied98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841). We thus conclude that, “viewing the facts in a light most favorable to the People, ‘there is a valid line of reasoning and permissible inferences from which a rational [trier of fact] could have found the elements of the crime proved beyond a reasonable doubt’ ” ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1).
Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime in this nonjury trial ( see id.), we conclude that the verdict is not 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;People v. Campbell, 98 A.D.3d 1310, 1311–1312, 951 N.Y.S.2d 627). It is well settled that “[g]reat deference is to be accorded to the fact [ ]finder's resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony” ( People v. Aikey, 94 A.D.3d 1485, 1486, 943 N.Y.S.2d 702,lv. denied19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [internal quotation marks omitted]; see People v. Curry, 82 A.D.3d 1650, 1651, 921 N.Y.S.2d 420,lv. denied17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803). Here, the court specifically credited the victim's testimony, and we see no basis to disturb that determination ( see People v. Newman, 87 A.D.3d 1348, 1350, 929 N.Y.S.2d 827,lv. denied18 N.Y.3d 926, 942 N.Y.S.2d 465, 965 N.E.2d 967). The evidence established that the victim called 911 within minutes after the robbery occurred and told the dispatcher that she knew the perpetrator. The victim sounded upset in the recording of the call, and her description of the robbery to the 911 dispatcher was consistent with her account at trial. Additionally, when the victim saw defendant two days after the robbery, she recorded his license plate number and promptly called the police. She then provided the police with a statement and a drawing of what the court described as “an unusual looking gun.” A gun, which was similar in appearance to the gun described by the victim, was subsequently recovered by the police in connection with an unrelated investigation and was later linked to defendant through DNA evidence. With respect to the victim's criminal history, “[t]he fact that [she] had an unsavory background ... [does] not render [her] testimony incredible” ( People v. Bernard, 100 A.D.3d 916, 916–917, 954 N.Y.S.2d 209;see People v. Wellborn, 82 A.D.3d 1657, 1658, 919 N.Y.S.2d 430,lv. denied17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106). Further, while the victim was the only eyewitness to the robbery, it is well established that “the testimony of one witness can be enough to support a conviction” ( People v. Calabria, 3 N.Y.3d 80, 82, 783 N.Y.S.2d 321, 816 N.E.2d 1257;see People v. Jackson, 8 N.Y.3d 869, 870, 832 N.Y.S.2d 477, 864 N.E.2d 607;People v. Arroyo, 54 N.Y.2d 567, 578, 446 N.Y.S.2d 910, 431 N.E.2d 271,cert. denied456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855), and several aspects of the victim's account were corroborated by the testimony of other witnesses as well as the DNA evidence ( see People v. Hurlbert, 81 A.D.3d 1430, 1431–1432, 916 N.Y.S.2d 713,lv. denied16 N.Y.3d 896, 926 N.Y.S.2d 31, 949 N.E.2d 979).
We also reject the contention of defendant that he was denied effective assistance of counsel. Although defense counsel's performance was not perfect, we conclude that, “[v]iewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, ... defendant received meaningful representation” ( People v. Hildreth, 86 A.D.3d 917, 918, 926 N.Y.S.2d 252;see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Defense counsel, inter alia, opposed the People's application for a buccal swab, made a bail application, vigorously cross-examined the People's witnesses, gave cogent opening and closing statements, moved for a trial order of dismissal, and moved to set aside the verdict pursuant to CPL 330.30. Through his cross-examination of the People's witnesses and his opening and closing statements, defense counsel suggested that the victim fabricated the robbery either in an effort to retain the money for herself or in furtherance of a vendetta against defendant, which was “a reasonable trial strategy in the face of strong opposing evidence” ( People v. Penwarden, 258 A.D.2d 902, 902, 685 N.Y.S.2d 557;see People v. Jordan, 99 A.D.3d 1109, 1110, 952 N.Y.S.2d 313). In furtherance of that strategy, he attacked the victim's veracity and the credibility of the People's other witnesses, challenged the significance of the DNA evidence, and questioned the adequacy of the police investigation into the robbery.
Finally, the sentence is not unduly harsh or severe, particularly given defendant's lengthy criminal history, the serious nature of the crime, and defendant's use of a semi-automatic assault weapon.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.