People v. Young

• Decision Date: 10 June 2010
• Citation: 74 A.D.3d 1471,902 N.Y.S.2d 222
• Parties: The PEOPLE of the State of New York, Respondent, v. Timothy L. YOUNG, Appellant.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 222

74 A.D.3d 1471

The PEOPLE of the State of New York, Respondent,

v.Timothy L. YOUNG, Appellant.

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

June 10, 2010.

Lucas G. Mihuta, Albany, for appellant.

John M. Muehl, District Attorney, Cooperstown (Michael G. Getman of counsel), for respondent.

Before: PETERS, J.P., ROSE, STEIN, McCARTHY and GARRY, JJ.

ROSE, J.

Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered April 7, 2008 in Otsego County, upon a verdict convicting defendant of the crime of robbery in the second degree (eight counts).

Two men wearing masks and wielding handguns pushed theirway into an apartment, tied up one occupant, forced three others onto the floor, and then stole money and marihuana. When the victims reported the incident, they identified one of the robbers as Vincent Colletti because they all knew him and had recognized his speech impediment during the robbery. After telephone records and the victims' description led police to defendant, he was charged as Colletti's accomplice with eight counts of robbery in the second degree. Following a jury trial, defendant was convicted as charged and sentenced as a second violent felony offender to eight concurrent prison terms of 15 years with five years of postrelease supervision.

Upon appeal, defendant contends that the verdict is against the weight ofthe evidence because Colletti's accomplice wore a mask and could not be positively identified, the victims' initial descriptions of the accomplice do not match his appearance and there is no physical evidence tying him to the crimes. Defendant also challenges the credibility of Nicole Van Heusen, a companion of his whose testimony placed him with Colletti at the scene of the crime. At trial, Van Heusen and Morgan Purcell testified that, on the day of the robbery, defendant and Van Heusen drove to Purcell's apartment where they met Colletti, and that Van Heusen later drove Colletti and defendant to the victims' house shortly before the robbery occurred. Van Heusen further testified that she waited in the car and, when Colletti and defendant returned, Colletti had money and marihuana. This, together with the victims' identification of Colletti as one of the two robbers, was strong circumstantial evidence supporting the jury's verdict that defendant was the second robber. Also, both Purcell and one of the victims identified defendant at trial. Although the defense pointed out the inconsistencies in the testimony of these witnesses and presented expert testimony regarding the unreliability of eyewitness testimony, we defer to the jury's opportunity to resolve these credibility issues and are not persuaded that the verdict is contrary to the weight of the evidence ( see People v. Romero, 7 N.Y.3d 633, 643-644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006]; People v. Sims, 57 A.D.3d 1106, 1108-1109, 868 N.Y.S.2d 832 [2008], lv. denied 12 N.Y.3d 762, 876 N.Y.S.2d 714, 904 N.E.2d 851 [2009]; People v. Robinson, 53 A.D.3d 681, 683, 860 N.Y.S.2d 680 [2008], lv. denied 11 N.Y.3d 794, 866 N.Y.S.2d 620, 896 N.E.2d 106 [2008] ).

Defendant also argues that Purcell should not have been permitted to make an in-court identification because his pretrial identification had been tainted by an unduly suggestive photo array. At an independent source hearing, however, Purcell testified that, shortly before the robbery occurred, he had a telephone conversation with defendant during which defendant identified himself by name. Purcell also testified that he thenspent about 30 minutes observing and interacting with defendant at his apartment before the robbery and again for about 10 minutes afterward. This provided ample record support for Supreme Court's determination that there was clear and convincing evidence of an independent basis for Purcell's in-court identification of defendant ( see People v. Allah, 57 A.D.3d 1115, 1117, 868 N.Y.S.2d 822 [2008], lv. denied 12 N.Y.3d 780, 879 N.Y.S.2d 57, 906 N.E.2d 1091 [2009]; People v. Mitchell, 42 A.D.3d 758, 760-761, 839 N.Y.S.2d 339 [2007], lv. denied 9 N.Y.3d 963, 848 N.Y.S.2d 32, 878 N.E.2d 616 [2007] ).

Next, defendant contends that his counsel was ineffective for having failed to request a police officer's notes at the Wade hearing, and then not using those notes when they were disclosed with other Rosario materials shortly before the trial began. Although the notes in question included a statement by Purcell describing Colletti's accomplice as having blond hair while defendant has brown hair, it would have had minimal exculpatory value and its oversight is not the sort of single substantial error by counsel that qualifies as ineffective representation ( see People v. Hobot, 84 N.Y.2d 1021, 1023-1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995] ). In addition, defense counsel made appropriate pretrial motions, pursued a reasonable defense theory based upon weaknesses in the People's proof of the identity of the second robber, made appropriate objections, and aggressively cross-examined the witnesses as to their identifications and past statements( see People v. Gilmore, 72 A.D.3d 1191, ----, 898 N.Y.S.2d 717, 721 [2010]; People v. Boyce, 2 A.D.3d 984, 986, 769 N.Y.S.2d 620 [2003], lv. denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467 [2004] ). Inasmuch as the representation need not be entirely error free and viewing the totality of the circumstances at the time of the representation, we find that defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]; People v. Varmette, 70 A.D.3d 1167, 1172, 895 N.Y.S.2d 239 [2010], lv. denied 14 N.Y.3d 845, 901 N.Y.S.2d 152, 927 N.E.2d 573 [2010]; People v. Echavarria, 53 A.D.3d 859, 864, 861 N.Y.S.2d 510 [2008], lv....