People v. Hayes

180 A.D.3d 1068

120 N.Y.S.3d 152

The PEOPLE, etc., Respondent,

v.John HAYES, Appellant.

2016-09654

Ind. No. 34/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted - October 17, 2019

February 26, 2020

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Jason R. Richards and John B. Latella of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William C. Donnino, J.), rendered August 12, 2016, convicting him of robbery in the first degree, robbery in the second degree, attempted robbery in the first degree, attempted robbery in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of charges relating to an attempted robbery of a grocery store and a robbery of a gas station, both of which were committed on December 4, 2013.

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 identity as one of the perpetrators of the attempted robbery and the robbery beyond a reasonable doubt. The evidence included an identification of the defendant by one of the complaining witnesses at the gas station, DNA evidence linking the defendant to the attempted robbery of the grocery store, and compelling circumstantial evidence implicating the defendant in both the attempted robbery of the grocery store and the robbery of the gas station (see People v. Drummond, 143 A.D.3d 836, 837, 39 N.Y.S.3d 208 ; People v. Moss, 138 A.D.3d 761, 761, 29 N.Y.S.3d 452 ; People v. Daniels, 125 A.D.3d 1432, 1432–1433, 3 N.Y.S.3d 543 ).

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, 348–349, 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 verdict of guilt 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 waived his current contention that the trial court should have granted a mistrial based upon the prosecutor's improper elicitation of negative identification testimony. The defendant entered into a stipulation with the People such that he made affirmative use of that testimony as part of his defense strategy (see People v. Derenoncourt, 135 A.D.3d 953, 954, 23 N.Y.S.3d 579 ; People v. Blackman, 13 A.D.3d 640, 641, 789 N.Y.S.2d 57 ).

The defendant's contentions that the trial court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) deprived him of his constitutional rights to testify and to present a defense are unpreserved for appellate review (see CPL 470.05[2] ; People v. Grant, 7 N.Y.3d 421, 424, 823 N.Y.S.2d 757, 857 N.E.2d 52 ; People v. Barnett, 163 A.D.3d 700, 701, 80 N.Y.S.3d 461 ). In any event, the trial court providently exercised its discretion in permitting the prosecution, if the defendant were to testify, to cross-examine him as to the existence of one of his felony convictions, without specific reference to the nature of the crime, and as to a misdemeanor conviction for petit larceny, without eliciting the underlying facts of that crime. " ‘[C]onvictions involving theft are highly relevant to the issue of credibility because they demonstrate the defendant's willingness to deliberately further his self-interest at the expense of...