People v. Brown

Decision Date15 February 2011
Citation916 N.Y.S.2d 110,81 A.D.3d 499
PartiesThe PEOPLE of the State of New York, Respondent, v. Steven BROWN, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

Robert S. Dean, Center for Appellate Litigation, New York (Peter Theis of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.

MAZZARELLI, J.P., FRIEDMAN, McGUIRE, RENWICK, RICHTER, JJ.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered February 27, 2009, convicting defendant, after a nonjury trial, of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 20 years to life, unanimously affirmed.

Defendant's claim that his waiver of a jury trial was invalid because he allegedly did not sign it in open court ( see CPL 320.10[2] ) is a claim requiring preservation ( see People v. Johnson, 51 N.Y.2d 986, 435 N.Y.S.2d 713, 416 N.E.2d 1048 [1980]; People v. Magnano, 158 A.D.2d 979, 551 N.Y.S.2d 131 [1990], affd. 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572 [1991], cert. denied 502 U.S. 864, 112 S.Ct. 189, 116 L.Ed.2d 150 [1991]; see also People v. McDaniel, 161 A.D.2d 1125, 555 N.Y.S.2d 498 [1990], lv. denied 76 N.Y.2d 861, 560 N.Y.S.2d 1001, 561 N.E.2d 901 [1990] ), and we decline to review this unpreserved claim in the interest of justice. "Moreover, quite apart from the lack of preservation, there is nothing on this record to afford a basis for determination of the question now raised for the first time" ( Johnson at 987, 435 N.Y.S.2d 713, 416 N.E.2d 1048). Defendant did not meet his burden of presenting this Court with a factual record sufficient to permit review of this issue ( see People v. Kinchen, 60 N.Y.2d 772, 773-774, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983] ). We note that there was an extensive colloquy about defendant's waiver of his right to a jury trial, and that the waiver form, signed by defendant and his counsel, expressly states that the waiver was made in open court.

Defendant did not preserve his legal sufficiency claims, including his argument that he established the affirmative defense to first-degree robbery set forth in Penal Law § 160.15(4) as a matter of law, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Furthermore, in the exercise of our factual review power, we find that the court's verdict, including its rejection of the affirmative defense, was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The evidence established the element of displaying what appeared to be a firearm ( see People v. Lopez, 73 N.Y.2d 214, 538 N.Y.S.2d 788, 535 N.E.2d 1328 [1989]; People v. Garcia, 278 A.D.2d 147, 718 N.Y.S.2d 60 [2000], lv. denied 96 N.Y.2d 759, 725 N.Y.S.2d 285, 748 N.E.2d 1081 [2001] ), and it failed to establish the affirmative defense,...

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  • People v. Gilley
    • United States
    • New York Supreme Court — Appellate Division
    • July 12, 2018
    ...1300, 47 N.Y.S.3d 532 [2017], lvs denied 29 N.Y.3d 1030, 1037, 62 N.Y.S.3d 299, 306, 84 N.E.3d 971, 978 [2017]; People v. Brown, 81 A.D.3d 499, 500, 916 N.Y.S.2d 110 [2011], lv denied 17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095 [2011] ; People v. Carter, 74 A.D.3d 1375, 1377, 903 N.Y.S......
  • People v. Thompson
    • United States
    • New York Supreme Court — Appellate Division
    • February 3, 2017
    ...69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ), including with respect to the affirmative defense (see People v. Brown, 81 A.D.3d 499, 500, 916 N.Y.S.2d 110, lv. denied 17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095 ; Williams, 15 A.D.3d at 245, 789 N.Y.S.2d 155 ; cf. People v. Mood......
  • People v. Moran
    • United States
    • New York Supreme Court — Appellate Division
    • September 30, 2011
    ...131, affd. 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572, cert. denied 502 U.S. 864, 112 S.Ct. 189, 116 L.Ed.2d 150; People v. Brown, 81 A.D.3d 499, 916 N.Y.S.2d 110), and that he did not voluntarily waive his right to a jury trial ( see People v. Dixon, 50 A.D.3d 1519, 856 N.Y.S.2d 383, ......
  • People v. Nelson
    • United States
    • New York Supreme Court — Appellate Division
    • November 8, 2019
    ...accomplice] had an opportunity to discard [the bullet magazine] before the police arrested him" ( People v. Brown, 81 A.D.3d 499, 500, 916 N.Y.S.2d 110 [1st Dept. 2011], lv denied 17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095 [2011] ; see generally People v. Williams, 15 A.D.3d 244, 245,......
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