Opinion
2018–10769 Ind. No. 1219/16
03-31-2021
The PEOPLE, etc., respondent, v. Harold TINDAL, appellant.
Paul Skip Laisure, New York, N.Y. (Chelsea Lopez of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, William H. Branigan, and Mirza Hadzic of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Chelsea Lopez of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, William H. Branigan, and Mirza Hadzic of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John B. Latella, J.), rendered August 15, 2018, convicting him of criminal trespass in the third degree and resisting arrest, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with robbery in the first and second degrees, criminal possession of a weapon in the fourth degree, criminal trespass in the third degree, and resisting arrest, arising out of an incident wherein the defendant and a codefendant, who was tried jointly with the defendant, were accused of breaking into a fenced-off and locked construction area in Queens. During lengthy jury deliberations, the Supreme Court issued an Allen charge to the jury (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 ), to which the defendant did not object. Thereafter, the jury acquitted the defendant of the robbery and weapon possession charges and convicted him of criminal trespass in the third degree and resisting arrest. The defendant appeals.
Although the defendant preserved for appellate review his contention that his conviction for criminal trespass in the third degree was not supported by legally sufficient evidence (see CPL 470.05[2] ), it is without merit. 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 identity as one of the perpetrators beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt on the charges of criminal trespass in the third degree and resisting arrest 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 acquittal as to the robbery and weapon possession charges does not change our conclusion (see People v. Edwards, 164 A.D.3d 830, 831, 79 N.Y.S.3d 560 ).
The defendant's claim of ineffective assistance of counsel is without merit (see People v. Edwards, 164 A.D.3d at 831, 79 N.Y.S.3d 560 ).
The defendant failed to preserve for appellate review his contention that his conviction for resisting arrest was not supported by legally sufficient evidence (see CPL 470.05[2] ) as well as his contention that the Supreme Court's Allen charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 ) was coercive, and we decline to reach those issues in the exercise of our interest of justice jurisdiction (see CPL 470.05[2] ; People v. Degree, 186 A.D.3d 501, 503, 128 N.Y.S.3d 631 ; People v. Canales, 88 A.D.3d 1007, 1007, 931 N.Y.S.2d 407 ). Since the defendant failed to assert any Batson challenges or join in or adopt the Batson challenges of his jointly tried codefendant (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ), his contentions on this issue are also unpreserved for appellate review and we decline to reach them in the exercise of our interest of justice jurisdiction (see People v. Reyes, 149 A.D.3d 478, 479, 49 N.Y.S.3d 890 ).
MASTRO, A.P.J., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.