People v. Hankerson

• Decision Date: 05 April 2017
• Citation: 149 A.D.3d 778,51 N.Y.S.3d 169
• Parties: The PEOPLE, etc., respondent, v. Elliot HANKERSON, appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 778

51 N.Y.S.3d 169

The PEOPLE, etc., respondent,

v.Elliot HANKERSON, appellant.

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

April 5, 2017.

Lynn W.L. Fahey, New York, NY (Erin R. Tomlinson of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Jonathan V. Brewer of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered March 16, 2015, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his convictions of robbery in the first degree and robbery in the second degree because the prosecution failed to establish his identity as the perpetrator of those crimes 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. Smith, 135 A.D.3d 970, 971, 23 N.Y.S.3d 391 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish his identity as the perpetrator. 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, 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's contention that the prosecutor made improper comments on summation is partially unpreserved for appellate review, since the defendant did not object to the majority of the comments he now challenges (see People v. Herring, 119 A.D.3d 958, 958–959, 989 N.Y.S.2d 883 ). In any event, any improper comments did not, singly or in combination, deprive the defendant of a fair trial (see People v. Bajana, 82 A.D.3d 1111, 1112, 919 N.Y.S.2d 194 ; People v. Garcia–Villegas, 78 A.D.3d 727, 728, 909 N.Y.S.2d 660 ). Defense counsel's failure to object to allegedly improper comments made by the prosecutor on summation did not deprive the defendant of the effective assistance of counsel (see People v. Bajana, 82 A.D.3d at 1112, 919 N.Y.S.2d 194 ; People v. Lopez, 69 A.D.3d 958, 958, 892 N.Y.S.2d 787 ).

The defendant's contention that the Supreme Court gave the jury inadequate instructions regarding the burden of proof and reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Love, 37 A.D.3d 618, 619, 830 N.Y.S.2d 723 ). In any event, the jury instructions, taken as a whole, conveyed the correct standard (see People v. Fields, 87 N.Y.2d 821, 637 N.Y.S.2d 355, 660 N.E.2d 1134 ; People v. King, 73 A.D.3d 1083,...