People v. Romero

• Decision Date: 12 December 2012
• Citation: 955 N.Y.S.2d 214,2012 N.Y. Slip Op. 08556,101 A.D.3d 906
• Parties: The PEOPLE, etc., respondent, v. Carlos ROMERO, appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 906

955 N.Y.S.2d 214

2012 N.Y. Slip Op. 08556

The PEOPLE, etc., respondent,

v.Carlos ROMERO, appellant.

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

Dec. 12, 2012.

Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant, and appellant pro se.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for respondent.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered January 14, 2010, convicting him of robbery in the first 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 conviction is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Hewitt, 82 A.D.3d 1119, 1121, 919 N.Y.S.2d 204). 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 the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), 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 claim that the trial court erred in failing to deliver an Allen charge ( see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) is also unpreserved for appellate review ( see People v. Johnson, 59 N.Y.2d 1014, 466 N.Y.S.2d 957, 453 N.E.2d 1246;People v. Velez, 150 A.D.2d 514, 541 N.Y.S.2d 109). In any event, an Allen charge was not necessary under the circumstances. The jury had only been deliberating for a day and a half when it asked the court what would happen if it could not reach a agreement. The court's instructions in response to the jury's question “merely asked the jury to try to continue deliberating, were not directed to a particular juror and were not coercive” ( People v. Velez, 150 A.D.2d at 515, 541 N.Y.S.2d 109).

The defendant failed to preserve for appellate review his contention that the sentence imposed by the trial court improperly penalized him for exercising his right to a jury trial, because he did not set forth the issue on the record at the time of sentencing ( see People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 553 N.E.2d 1017;People v. Garcia, 66 A.D.3d 699, 885 N.Y.S.2d 771;People v. Norris, 34 A.D.3d 500, 501, 823 N.Y.S.2d 526;People v. Best, 295 A.D.2d 441, 441, 743 N.Y.S.2d 313). In any event, the contention is without merit. “The fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that the defendant was punished for asserting his right to proceed to trial” ( People v. Griffin, 98 A.D.3d 688, 690, 950 N.Y.S.2d 161;see People v. DeCampoamor, 91 A.D.3d 669, 672, 936 N.Y.S.2d 256;People v. Jimenez, 84 A.D.3d 1268, 1269, 923 N.Y.S.2d 354;People v. Givhan, 78 A.D.3d 730, 731–732, 911 N.Y.S.2d 83). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's claim that he was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “ ‘mixed claim[ ]’ ” of ineffective assistance ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457,cert. denied––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel ( cf. People v. Crump, 53 N.Y.2d 824, 440 N.Y.S.2d 170, 422 N.E.2d 815;People v. Brown, 45 N.Y.2d 852, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective...