Opinion
547 KA 20-01575
06-30-2023
The PEOPLE of the State of New York, Respondent, v. Raphael C. TORRES, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, OGDEN, AND GREENWOOD, 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 one count of robbery in the second degree ( Penal Law § 160.10 [3] ) and two counts of robbery in the third degree (§ 160.05). The charges arose from incidents in which defendant forcibly stole a vehicle and purse from one victim and, the following day, forcibly stole a purse from a second victim.
We reject defendant's contention that County Court erred in permitting the People to introduce certain Molineux evidence. The court properly concluded that the evidence "provided necessary background information on the nature of the relationship and placed the charged conduct in context" ( People v. Dorm , 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ; see People v. Swift , 195 A.D.3d 1496, 1499, 147 N.Y.S.3d 852 [4th Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 410, 175 N.E.3d 436 [2021] ; see generally People v. Frankline , 27 N.Y.3d 1113, 1115, 36 N.Y.S.3d 834, 57 N.E.3d 26 [2016] ) and that it was relevant to the issues of defendant's intent and motive (see Dorm , 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Cung , 112 A.D.3d 1307, 1310, 978 N.Y.S.2d 497 [4th Dept. 2013], lv denied 23 N.Y.3d 961, 988 N.Y.S.2d 569, 11 N.E.3d 719 [2014] ). We further conclude that the court did not abuse its discretion in determining that the probative value of the evidence outweighed its potential for prejudice to defendant (see Dorm , 12 N.Y.3d at 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; see generally People v. Alvino , 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ). Moreover, the court's repeated limiting instructions minimized any such prejudice (see People v. Murray , 185 A.D.3d 1507, 1508, 128 N.Y.S.3d 736 [4th Dept. 2020], lv denied 36 N.Y.3d 974, 138 N.Y.S.3d 454, 162 N.E.3d 683 [2020] ; People v. Matthews , 142 A.D.3d 1354, 1356, 38 N.Y.S.3d 307 [4th Dept. 2016], lv denied 28 N.Y.3d 1125, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016] ).
We reject defendant's contention that the evidence is not legally sufficient to support the conviction of robbery in the third degree under count 3 of the indictment (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Moreover, viewing the evidence in light of the elements of counts 1 and 2 as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict with respect to those counts is 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 ). Although a different verdict would not have been unreasonable, it cannot be said that the jury "failed to give the evidence the weight it should be accorded" ( id. ; see People v. Kalinowski , 118 A.D.3d 1434, 1436, 988 N.Y.S.2d 776 [4th Dept. 2014], lv denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18 N.E.3d 1144 [2014] ).
We agree with defendant that the court erred in admitting in evidence a recording of a 911 call made by a witness to one of the incidents. The 911 recording constitutes hearsay (see People v. Buie , 86 N.Y.2d 501, 505, 634 N.Y.S.2d 415, 658 N.E.2d 192 [1995] ), and no exception to the rule against hearsay applies herein. Nevertheless, we conclude that the error was harmless because "the ‘proof of [defendant's] guilt was overwhelming ... and ... there was no significant probability that the jury would have acquitted [him] had the proscribed evidence not been introduced’ " ( People v. Spencer , 96 A.D.3d 1552, 1553, 946 N.Y.S.2d 753 [4th Dept. 2012], lv denied 19 N.Y.3d 1029, 953 N.Y.S.2d 562, 978 N.E.2d 114 [2012], reconsideration denied 20 N.Y.3d 989, 958 N.Y.S.2d 704, 982 N.E.2d 624 [2012], quoting People v. Kello , 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] ; see generally People v. Crimmins , 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Contrary to defendant's contention, we conclude that the sentence is not unduly harsh or severe. We have reviewed defendant's remaining contention and conclude that it does not warrant modification or reversal of the judgment.