Opinion
2014-09-30
The PEOPLE of the State of New York, Respondent, v. Ervin BOWENS, Defendant–Appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Manu Balachandran of counsel), for respondent.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Manu Balachandran of counsel), for respondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered December 11, 2012, convicting defendant, after a jury trial, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning credibility. Defendant's accessorial liability could be reasonably inferred from the entire course of conduct of defendant and his codefendant before, during and after the crime, along with defendant's damaging admissions ( see generally Matter of Juan J., 81 N.Y.2d 739, 593 N.Y.S.2d 768, 609 N.E.2d 121 [1992]; People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029 [1988] ).
The sentencing court properly adjudicated defendant a second violent felony offender. Not only was defendant's predicate felony (Penal Law § 110.00/265.02 [4] ) classified as a violent felony at the time of that conviction in 2003 ( see People v. Walker, 81 N.Y.2d 661, 664–666, 603 N.Y.S.2d 280, 623 N.E.2d 1 [1993] ), the same crime remained a violent felony at the time of defendant's second violent felony offender adjudication, albeit as the result of a recodification ( seePenal Law § 265.03[3]; William C. Donnino, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, Penal Law § 265.00 at 413). Defendant's ex post facto argument is without merit. MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ., concur.