Opinion
688 KA 18–00650
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Ninimbe MITCHELL, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT. NINIMBE MITCHELL, DEFENDANT-APPELLANT PRO SE. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SARA A. GOLDFARB OF COUNSEL), FOR DEFENDANT-APPELLANT.
NINIMBE MITCHELL, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of robbery in the first degree ( Penal Law § 160.15 [1] ). We affirm.
Viewing the evidence in the light most favorable to the People, we reject defendant's contention in his main brief that the evidence is legally insufficient to support the conviction (see generally Penal Law § 20.00 ; People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Furthermore, viewing the evidence in light of the elements of the crime as charged to the jury, as well as the instruction on accomplice liability (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention in his main brief, the prosecutor did not elicit any testimony that could be reasonably construed to suggest that defendant had invoked his constitutional right to remain silent (see People v. Torres , 125 A.D.3d 1481, 1483, 3 N.Y.S.3d 851 [4th Dept. 2015], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015] ; People v. Hicks , 226 A.D.2d 189, 189, 641 N.Y.S.2d 10 [1st Dept. 1996], lv denied 88 N.Y.2d 966, 647 N.Y.S.2d 720, 670 N.E.2d 1352 [1996] ). We thus need not determine whether defendant opened the door to any such testimony.
Defendant's contention in his main brief that Supreme Court admitted irrelevant evidence is unpreserved for appellate review because he never objected to the subject evidence on that ground (see People v. Purdy , 154 A.D.3d 1306, 1307–1308, 63 N.Y.S.3d 170 [4th Dept. 2017], lv denied 30 N.Y.3d 1108, 77 N.Y.S.3d 7, 101 N.E.3d 393 [2018] ). Defendant's allegation in his main brief of prosecutorial misconduct on summation is likewise unpreserved because defendant did not object to the allegedly improper comment (see People v. Santiago , 29 A.D.3d 466, 467, 816 N.Y.S.2d 33 [1st Dept. 2006], lv denied 7 N.Y.3d 794, 821 N.Y.S.2d 824, 854 N.E.2d 1288 [2006] ). We decline to exercise our power to review either contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
We reject defendant's contention in his main brief that the sentence is unduly harsh and severe. Finally, contrary to defendant's contention in his pro se supplemental brief, the verdict of guilty of robbery in the first degree is not repugnant to the acquittal of felony murder (see People v. Jacobs , 128 A.D.3d 850, 850–851, 9 N.Y.S.3d 133 [2d Dept. 2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 549, 42 N.E.3d 219 [2015] ; People v. Trotter , 255 A.D.2d 925, 926, 683 N.Y.S.2d 676 [4th Dept. 1998], lv denied 93 N.Y.2d 980, 695 N.Y.S.2d 66, 716 N.E.2d 1111 [1999] ).