People v. Roberts

• Decision Date: 05 April 2011
• Citation: 83 A.D.3d 739,920 N.Y.S.2d 386,2011 N.Y. Slip Op. 02908
• Parties: The PEOPLE, etc., respondent, v. Wensley ROBERTS, appellant.
• Court: New York Supreme Court

83 A.D.3d 739

920 N.Y.S.2d 386

The PEOPLE, etc., respondent,

v.Wensley ROBERTS, appellant.

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

April 5, 2011.

Tumelty & Spier, LLP, New York, N.Y. (John Tumelty of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Anastasia Spanakos of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kolm, J.), rendered January 28, 2008, convicting him of robbery in the second degree (three counts), assault in the third degree, criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the Supreme Court erred in denying his Batson challenge ( see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69) because the prosecutor's explanation for peremptorily challenging three black potential jurors was pretextual. However, the same issue was previously raised by the defendant's codefendant with whom he was tried. On the same record as is present here, this Court found that the Batson challenge was without merit ( see People v. Dehaarte, 65 A.D.3d 593, 883 N.Y.S.2d 723). Upon reviewing the record here, we see no reason to depart from our prior determination.

Contrary to the defendant's contention, his allegations of prosecutorial misconduct were speculative, and therefore insufficient to warrant an investigation ( see People v. Brown, 56 N.Y.2d 242, 451 N.Y.S.2d 693, 436 N.E.2d 1295;People v. Chevalier, 226 A.D.2d 925, 641 N.Y.S.2d 433).

The defendant's claim that he was deprived of the effective assistance of counsel is, in part, based on matter dehors the record and, to that extent, it may not be reviewed on direct appeal ( see People v. Ramos, 77 A.D.3d 773, 775, 909 N.Y.S.2d 484). Insofar as the record permits review of the claim, we find that defense counsel provided meaningful representation ( see People v. Turner, 5 N.Y.3d 476, 480, 806 N.Y.S.2d 154, 840 N.E.2d 123;People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Contrary to the People's claim, the defendant's contention that the evidence was legally insufficient to identify him as a participant in the crimes of which he was convicted is preserved for appellate review ( seeCPL 470.05[2] ). His further contention that the evidence was legally insufficient to support the elements of criminal possession of a weapon in the fourth degree and criminal possession of stolen property in the fifth degree is unpreserved for appellate review ( seeCPL 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. Martin, 48 A.D.3d 701, 702, 850 N.Y.S.2d 908). In any event, 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 it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of all the crimes of which he was convicted. Moreover, in fulfilling our...