People v. Arroyo

• Decision Date: 13 May 2015
• Docket Number: 2013-10825
• Citation: 2015 N.Y. Slip Op. 04138,128 A.D.3d 843,9 N.Y.S.3d 137
• Parties: The PEOPLE, etc., respondent, v. John ARROYO, appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 843

9 N.Y.S.3d 137

2015 N.Y. Slip Op. 04138

The PEOPLE, etc., respondent

v.John ARROYO, appellant.

2013-10825

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

May 13, 2015.

Marianne Karas, Thornwood, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Raffaelina Gianfrancesco, Laurie G. Sapakoff, and Steven A. Bender of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY, and BETSY BARROS, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered November 6, 2013, convicting him of robbery in the first degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel. Defense counsel made appropriate pretrial motions resulting in the trial court conducting Wade, Huntley, Mapp, and Dunaway hearings (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 ; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 ), made a coherent and well-reasoned opening statement, vigorously cross-examined the People's witnesses, made a well-argued trial motion to dismiss at the close of the People's case, presented a defense of misidentification, and made a cogent closing statement (see People v. Jenkins, 103 A.D.3d 753, 958 N.Y.S.2d 904 ). Viewing the record in its entirety, the defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Rivera, 71 N.Y.2d 705, 530 N.Y.S.2d 52, 525 N.E.2d 698 ; People v. Greene, 110 A.D.3d 827, 828, 973 N.Y.S.2d 239 ).

The defendant did not preserve for appellate review his contention that the trial court erred, with respect to the conviction of robbery in the first degree, by not charging the jury with the lesser-included offense of robbery in the second degree, since counsel neither requested the charge nor objected to its absence (see People v. Miaram, 97 A.D.3d 606, 607, 948 N.Y.S.2d 115 ). In any event, no basis existed for the court to give such a charge, since no evidence presented at the trial would have allowed the jury to find, by a preponderance of the evidence, that the object displayed was not a loaded weapon capable of producing death or other serious physical injury (see People v. Miaram, 97 A.D.3d at 607, 948 N.Y.S.2d 115 ; Penal Law § 160.15 [4 ] ).

The defendant contends that the trial court's response to a jury note regarding the definition of robbery in the first degree with respect to the failure of the police to recover a gun had the effect of directing a verdict of guilt on the count of robbery in the first degree. This contention is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the court's response was appropriate and the jury is presumed to have followed the court's instruction to consider only the evidence when judging the facts of the case (see People v. Tohom, 109 A.D.3d 253, 268, 969 N.Y.S.2d 123 ).

The defendant argues that the testimony of the People's police witnesses regarding the complainant's description of the perpetrator and of the commission of the crime and its aftermath constituted improper bolstering and inadmissible hearsay. However, these contentions are unpreserved for appellate review because the defendant did not object to the testimony (see People v. Speaks, 124 A.D.3d 689, 1 N.Y.S.3d 257, lv. granted 24 N.Y.3d 1222, 4 N.Y.S.3d 610, 28 N.E.3d 46 ). In any event, these contentions are without merit. Here, as in People v. Smith, 22 N.Y.3d 462, 464, 982 N.Y.S.2d 809, 5 N.E.3d 972, the officers' testimony regarding the complainant's description of the robber was admissible. In addition, the officers' testimony regarding the complaining witness's description of the robber, as well as his account of the robbery, was properly admitted for the nonhearsay purpose of establishing the reasons behind the detective's actions,...