People v. Marcus

• Decision Date: 04 December 2013
• Citation: 2013 N.Y. Slip Op. 08101,975 N.Y.S.2d 771,112 A.D.3d 652
• Parties: The PEOPLE, etc., respondent, v. Anthony MARCUS, appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 652

975 N.Y.S.2d 771

2013 N.Y. Slip Op. 08101

The PEOPLE, etc., respondent,

v.Anthony MARCUS, appellant.

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

Dec. 4, 2013.

Herbert Kellner, Smithtown, N.Y., for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered December 19, 2007, convicting him of robbery in the first degree, robbery in the second degree (two counts), burglary in the first degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On October 11, 2006, the defendant, along with two other individuals, encountered the complainant in the hallway outside their apartments, punched him, and took $65 from his pocket before fleeing. On November 3, 2006, the defendant, along with two other individuals, forced their way into the same complainant's apartment, where they held a meat cleaver to his neck and took $100 from his shirt pocket.

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, in connection with the incident on October 11, 2006, the evidence was legally sufficient to establish the defendant's guilt of robbery in the second degree ( seePenal Law § 160.10[1]; People v. Harvey, 76 A.D.3d 605, 606, 905 N.Y.S.2d 514; People v. Killings, 200 A.D.2d 636, 637, 606 N.Y.S.2d 747; People v. Woodham, 158 A.D.2d 494, 550 N.Y.S.2d 941). Regarding the incident on November 3, 2006, the evidence was legally sufficient to establish the defendant's guilt of robbery in the first degree ( seePenal Law § 160.15[3]; People v. Soares, 80 A.D.3d 631, 914 N.Y.S.2d 658; People v. Elliot, 298 A.D.2d 290, 748 N.Y.S.2d 745), robbery in the second degree ( seePenal Law § 160.10 [1]; People v. Harvey, 76 A.D.3d at 606, 905 N.Y.S.2d 514; People v. Killings, 200 A.D.2d at 637, 606 N.Y.S.2d 747; People v. Woodham, 158 A.D.2d at 494, 550 N.Y.S.2d 941), burglary in the first degree ( seePenal Law § 140.30[3] ), and menacing in the second degree ( seePenal Law § 120.14 [1] ). In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 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, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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; People v. Kinard, 96 A.D.3d 976, 946 N.Y.S.2d 504). Contrary to the defendant's contentions, inconsistencies in the complainant's testimony were fully explored at trial and did not render the complainant's testimony incredible or unworthy of belief ( see People v. Schouenborg, 42 A.D.3d 473, 840 N.Y.S.2d 807; People v. Hinds, 13 A.D.3d 554, 787 N.Y.S.2d 99; People v. Ross, 262 A.D.2d 429, 693 N.Y.S.2d 50).

The defendant's contention regarding the trial court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is without merit. The court properly weighed the probative value of the defendant's prior criminal acts in connection with the issue of credibility against the possible prejudice, and reached an appropriate ruling ( see People v. Ward, 65 A.D.3d 1172, 1173, 885 N.Y.S.2d 209; People v. Fotiou, 39 A.D.3d 877, 878, 834 N.Y.S.2d 319). The fact that a prior conviction for attempted robbery was similar in nature to the instant offenses did not warrant its preclusion ( see People v. Harris, 74 A.D.3d at 984, 902 N.Y.S.2d 190; People v. Hayes, 44 A.D.3d 683, 843 N.Y.S.2d 175; People v. Lewis, 31 A.D.3d 788, 789, 818 N.Y.S.2d 615).

The defendant's contention that certain of the prosecutor's summation remarks deprived him of a fair trial is unpreserved for appellate review because defense counsel failed to object to those remarks at trial ( see People v. Siriani, 27 A.D.3d 670, 811 N.Y.S.2d 127). In any event, statements that the complainant had no motive to lie constituted a fair response to defense counsel's summation, which attacked the complainant's credibility ( see People v. Tiro, 100 A.D.3d 663, 952 N.Y.S.2d 893; People v. Tatum, 39 A.D.3d 571, 835 N.Y.S.2d 217; People v. Allien, 302 A.D.2d 468, 753 N.Y.S.2d 738; People v. Evans, 192 A.D.2d 671, 672, 597 N.Y.S.2d 90; People v. Estrella, 156 A.D.2d 710, 549 N.Y.S.2d 173; People v. Draksin, 145 A.D.2d 500,...