Opinion
2016–03888 Ind.No. 1722/13
09-16-2020
The PEOPLE, etc., Respondent, v. Rubens PETION, Appellant.
Beverly Van Ness, New York, NY, for appellant, and appellant pro se. Madeline Singas, District Attorney, Mineola, N.Y. (Kevin C. King and John B. Latella of counsel), for respondent.
Beverly Van Ness, New York, NY, for appellant, and appellant pro se.
Madeline Singas, District Attorney, Mineola, N.Y. (Kevin C. King and John B. Latella of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Terence P. Murphy, J.), rendered April 11, 2016, convicting him of robbery in the first degree (two counts) and robbery in the second degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged and tried for his role as the getaway driver for a gunpoint robbery of a car dealership located in Franklin Square.
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 (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 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 ; 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 verdicts of guilt were not against the weight of the evidence. The defendant testified on his own behalf at the trial and claimed, inter alia, that two of his codefendants were not passengers in the getaway car, even though the People adduced evidence at the trial that one of those two codefendants was observed by police officers fleeing on foot from the car, and that the other codefendant was arrested along with the defendant upon their exit from the car. On appeal, the defendant posits that the jury may have found his testimony unbelievable, and contends that he was unduly prejudiced by the Supreme Court's alleged failure to instruct the jury that the People had a burden to provide "evidence independent of [the] proof of guilt" ( O'Donnell v. State of New York, 26 A.D.3d 59, 64, 808 N.Y.S.2d 266 ), that his testimony was false, in order to consider his testimony as evidence of his consciousness of guilt. The defendant failed to preserve this contention for appellate review (see CPL 470.05[2] ). In any event, despite the defendant's arguments to the contrary, no such instruction was required here (cf. People v. Young, 266 A.D.2d 93, 94, 698 N.Y.S.2d 643 ; People v. Abdul–Malik, 61 A.D.2d 657, 661, 403 N.Y.S.2d 253 ; People v. Cright, 47 A.D.2d 906, 906, 366 N.Y.S.2d 218 ). The defendant's contention that certain remarks made by the prosecutor in summation improperly shifted the burden of proof is unpreserved for appellate review (see CPL 470.05[2] ; People v. Beaupre, 170 A.D.3d 1031, 1033, 96 N.Y.S.3d 276 ). In any event, the challenged remarks were not improper, in that they "remained within the broad bounds of rhetorical comment permissible in summations" ( People v. Flowers, 102 A.D.3d 885, 886, 958 N.Y.S.2d 206 ; see People v. Powell, 288 A.D.2d 239, 240, 732 N.Y.S.2d 357 ; People v. Olds, 222 A.D.2d 531, 532, 635 N.Y.S.2d 61 ).
Contrary to the defendant's contentions, raised in his pro se supplemental brief, his challenges to the felony complaints are academic, since the felony complaints were superseded by an indictment (see People v. Brown, 170 A.D.3d 878, 880, 96 N.Y.S.3d 110 ; People v. Barnett, 108 A.D.3d 638, 638, 968 N.Y.S.2d 393 ).
The contentions raised by the defendant in his pro se supplemental brief regarding the grand jury proceeding are not subject to review on direct appeal because they involve allegations that are dehors the record, which should be raised in a motion pursuant to CPL 440.10 to vacate the judgment (see People v. Flores, 151 A.D.3d 740, 741, 53 N.Y.S.3d 556 ; People v. English, 119 A.D.3d 706, 988 N.Y.S.2d 697 ; People v. Redmond, 41 A.D.3d 514, 515–516, 837 N.Y.S.2d 710 ; People v. Palmer, 29 A.D.3d 606, 815 N.Y.S.2d 129 ; People v. Sain, 261 A.D.2d 488, 691 N.Y.S.2d 64 ). Likewise, the defendant's contention that the People withheld certain alleged Brady material (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 ) is not properly raised on direct appeal, and should also be raised in a motion pursuant to CPL 440.10 to vacate the judgment, because the facts supporting the defendant's claim are dehors the record (see People v. Ellis, 166 A.D.3d 993, 994, 88 N.Y.S.3d 537, affd 34 N.Y.3d 1092, 116 N.Y.S.3d 654, 139 N.E.3d 1234 ; People v. Geritano, 158 A.D.3d 724, 725, 71 N.Y.S.3d 531 ; People v. Wilson, 283 A.D.2d 339, 340, 727 N.Y.S.2d 62 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., BALKIN, AUSTIN and DUFFY, JJ., concur.