Opinion
2011-04171
08-26-2015
The PEOPLE, etc., respondent, v. Joshua QUINN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered April 14, 2011, convicting him of robbery in the first degree (10 counts), robbery in the second degree (5 counts), and criminal possession of a weapon in the second degree (2 counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, considering all of the available facts and circumstances, the police possessed probable cause to arrest him (see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ) and, therefore, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence obtained after his arrest (see People v. Vasquez, 94 A.D.3d 915, 941 N.Y.S.2d 853 ; People v. Francis, 44 A.D.3d 788, 789, 843 N.Y.S.2d 419 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of 10 counts of robbery in the first degree, 5 counts of robbery in the second degree, and 2 counts of criminal possession of a weapon in the second degree, under an accomplice theory of liability, beyond a reasonable doubt (see People v. Cabrera, 85 A.D.3d 942, 925 N.Y.S.2d 166 ; People v. Ramos, 74 A.D.3d 991, 992, 904 N.Y.S.2d 81 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that the jury instructions were improper is unpreserved for appellate review (see CPL 470.05[2] ; People v. Joseph, 114 A.D.3d 878, 879, 980 N.Y.S.2d 805 ; People v. Capehart, 61 A.D.3d 885, 886, 877 N.Y.S.2d 211 ) and, in any event, without merit. Since the case against the defendant consisted of both direct and circumstantial evidence, he was not entitled to a circumstantial evidence charge (see People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 ; People v. Joseph, 114 A.D.3d at 879, 980 N.Y.S.2d 805 ; People v. Garson, 69 A.D.3d 650, 651–652, 892 N.Y.S.2d 511 ). Moreover, contrary to the defendant's contention, the charge as a whole adequately conveyed to the jury the appropriate burden of proof (see People v. Samuels, 99 N.Y.2d 20, 25–26, 750 N.Y.S.2d 828, 780 N.E.2d 513 ; People v. Swain, 126 A.D.2d 763, 511 N.Y.S.2d 142 ; People v. Man Lee Lo, 118 A.D.2d 225, 231–232, 504 N.Y.S.2d 332 ).The defendant's contention that reversal is required because of improper remarks made by the prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2] ; People v. Terry, 122 A.D.3d 882, 996 N.Y.S.2d 362 ; People v. Collins, 122 A.D.3d 873, 874, 996 N.Y.S.2d 365 ) and, in any event, is without merit (see People v. Quezada, 116 A.D.3d 796, 798, 983 N.Y.S.2d 326 ; People v. Molinaro, 62 A.D.3d 724, 724–725, 880 N.Y.S.2d 91 ).
The defendant was not deprived of the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). In his pro se supplemental brief, the defendant challenges the sufficiency of the evidence presented to the grand jury. “Since the defendant's guilt was proven beyond a reasonable doubt at trial, there can be no appellate review of the issue of whether a prima facie case was presented to the grand jury” (People v. Folkes, 43 A.D.3d 956, 957, 841 N.Y.S.2d 365 ; see CPL 210.30[6] ; People v. Parker, 74 A.D.3d 1365, 1366, 903 N.Y.S.2d 264 ).