People v. Robertson

172 A.D.3d 1239

98 N.Y.S.3d 866 (Mem)

The PEOPLE, etc., Respondent,

v.Erick ROBERTSON, Appellant.

2017–05534

Ind.No. 2130/16

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

Submitted—February 7, 2019

May 22, 2019

Paul Skip Laisure, New York, N.Y. (Sean Nuttall of counsel), for appellant.

John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Mariana Zelig of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leslie G. Leach, J.), rendered April 19, 2017, convicting him of robbery in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the People failed to present legally sufficient evidence to sustain his conviction of robbery in the second degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, 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 of that crime beyond a reasonable doubt. 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, 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 as to that crime 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 failed to lay a proper foundation for the admission into evidence of prior inconsistent statements made by the complainant. Thus, we agree with the Supreme Court's refusal to allow the defendant to introduce those statements into evidence (see People v. Duncan, 46 N.Y.2d 74, 80–81, 412 N.Y.S.2d 833, 385 N.E.2d 572 ; People v. Sawyer, 304 A.D.2d 775, 776, 757 N.Y.S.2d 766 ; People v. Sutton, 209 A.D.2d 456, 457, 619 N.Y.S.2d 575 ).

The Supreme Court should not have allowed the People to recall the arresting officer to testify that he was informed that fingerprints taken from the defendant, Erick Robertson, matched an "NYSID" number already in the New York State database for an Eric Robinson. The officer was permitted to repeat the number to the jury. The People then utilized the officer's testimony to link the defendant to certificates of disposition demonstrating that Eric Robinson had been twice convicted of criminal possession of stolen property, which the court allowed into evidence in its Molineux ruling (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 ). This evidence was inadmissible hearsay, as the source of the information did not testify at trial, and thus was not subject to cross-examination (see People v. Oliver, 92 A.D.3d 900, 938 N.Y.S.2d 619 ). However, this error was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions (see People v. Grant, 7 N.Y.3d 421, 423, 823 N.Y.S.2d 757, 857 N.E.2d 52 ; People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

The defendant's contentions regarding alleged prosecutorial misconduct during summation are partially unpreserved for appellate review (see CPL 470.05[2] ; People v. Fletcher, 130 A.D.3d 1063, 1065, 15 N.Y.S.3d 797, affd 27 N.Y.3d 1177, 37 N.Y.S.3d 474, 58 N.E.3d 1111 ). In any event, the challenged remarks were fair response...