People v. Stewart
| Decision Date | 22 November 2011 |
| Citation | 933 N.Y.S.2d 112,2011 N.Y. Slip Op. 08622,89 A.D.3d 1044 |
| Parties | The PEOPLE, etc., respondent, v. Dayquan STEWART, appellant. |
| Court | New York Supreme Court — Appellate Division |
2011 N.Y. Slip Op. 08622
89 A.D.3d 1044
933 N.Y.S.2d 112
The PEOPLE, etc., respondent,
v.
Dayquan STEWART, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Nov. 22, 2011.
[933 N.Y.S.2d 112]
Lynn W.L. Fahey, New York, N.Y. (Erin R. Collins of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Brooke E. Barnes of counsel), for respondent.
WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, PLUMMER E. LOTT and JEFFREY A. COHEN, JJ.[933 N.Y.S.2d 113]
[89 A.D.3d 1044] Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered June 19, 2009, convicting him of robbery in the second degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 10 years, to be followed by a period of 5 years of postrelease supervision.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence of imprisonment for robbery in the second degree from a determinate term of imprisonment of 10 years to a determinate term of imprisonment of 7 years, to be followed by a period of 5 years of postrelease supervision; as so modified, the judgment is affirmed.
The defendant was convicted of robbery in the second degree after the complainant identified him in a lineup and subsequently in court as the person who, with two other men, robbed him at gunpoint. The defendant was arrested shortly after the robbery for possession of a gun that was later identified by the complainant as the same gun that was used by the defendant during the robbery. The jury acquitted the defendant of five of the six charges against him, including all of the charges that accused the defendant of causing the complainant physical injury and that accused the defendant of displaying or using a firearm. On the conviction of robbery in the second degree, the Supreme Court sentenced the defendant to a determinate term of imprisonment of 10 years, to be followed by a period of 5 years of postrelease supervision.
Contrary to the defendant's contention, he was not deprived of the right to present a defense as a result of the Supreme Court's refusal to grant him a continuance of one business day to secure the testimony of an alibi witness who had testified in the grand jury. The decision of whether to grant a continuance is a matter that is committed to the trial court's sound discretion ( see People v. Jackson, 41...
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