People v. Mack

• Decision Date: 09 February 2012
• Citation: 92 A.D.3d 475,2012 N.Y. Slip Op. 00902,938 N.Y.S.2d 72
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony MACK, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00902

92 A.D.3d 475

938 N.Y.S.2d 72

The PEOPLE of the State of New York, Respondent,

v.Anthony MACK, Defendant–Appellant.

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

Feb. 9, 2012.

Office of the Appellate Defender, New York (Richard M. Greenberg of counsel), for appellant.

Anthony Mack, appellant pro se.

Cyrus R. Vance, Jr., District Attorney, New York (Nicole A. Coviello of counsel), for respondent.TOM, J.P., SWEENY, ACOSTA, RENWICK, ROMÁN, JJ.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered February 22, 2008, as amended April 2, 2008, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 14 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning issues of credibility, including any inconsistencies in testimony.

The court providently exercised its discretion in denying defendant's request to charge the jury that attempted theft of services would not establish that defendant attempted to steal money. The court charged the jury that the People were required to prove an attempt to steal cash, and that was the only theory that the People advanced ( see People v. James, 35 A.D.3d 189, 825 N.Y.S.2d 465 [2006], lv. denied 8 N.Y.3d 946, 836 N.Y.S.2d 557, 868 N.E.2d 240 [2007] ). Accordingly, the additional language requested by defendant was unnecessary.

The court also providently exercised its discretion in precluding defendant from eliciting his own out-of-court statement, given that the People did not open the door to that statement ( see People v. Massie, 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102 [2004] ). The prosecutor's single, innocuous question on redirect examination of an officer was responsive to defendant's cross-examination. The prosecutor did not advance a “failure-to-deny” claim ( see People v. Carroll, 95 N.Y.2d 375, 385–387, 718 N.Y.S.2d 10, 740 N.E.2d 1084 [2000] ) or mislead the jury. Defendant's constitutional challenges to the court's ruling are unpreserved, and we decline to review them in the interest of justice. As an alternate holding, we reject these constitutional claims on the merits.

Defendant's constitutional challenge to his sentencing as a...