Opinion
2015-08-26
The PEOPLE, etc., respondent, v. Andre BOWERS, appellant.
Seymour W. James, Jr., New York, N.Y. (Susan Epstein of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Susan Epstein of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered April 15, 2011, convicting him of robbery in the first degree (10 counts), and robbery in the second degree (5 counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, considering all of the available facts and circumstances, the police possessed probable cause to arrest the defendant ( see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451). Therefore, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence obtained after his arrest ( see People v. Vasquez, 94 A.D.3d 915, 941 N.Y.S.2d 853; People v. Francis, 44 A.D.3d 788, 789, 843 N.Y.S.2d 419).
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 of 10 counts of robbery in the first degree and 5 counts of robbery in the second degree under an accomplice theory of liability beyond a reasonable doubt ( see People v. Cabrera, 85 A.D.3d 942, 925 N.Y.S.2d 166; People v. Ramos, 74 A.D.3d 991, 992, 904 N.Y.S.2d 81). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes 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).
Contrary to the defendant's contention, he was not entitled to an adverse inference charge based upon an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Under the circumstances of this case, the defendant did not exercise reasonable due diligence in obtaining the recording of the 911 call he made at the time of the incident ( see People v. Handy, 20 N.Y.3d 663, 966 N.Y.S.2d 351, 988 N.E.2d 879; cf. People v. Manigualt, 125 A.D.3d 1480, 3 N.Y.S.3d 850; People v. Singh, 5 A.D.3d 403, 771 N.Y.S.2d 908).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
In his pro se supplemental brief, the defendant challenges the sufficiency of the evidence presented to the grand jury. “Since the defendant's guilt was proven beyond a reasonable doubt at trial, there can be no appellate review of the issue of whether a prima facie case was presented to the grand jury” (People v. Folkes, 43 A.D.3d 956, 957, 841 N.Y.S.2d 365; see CPL 210.30 [6]; People v. Parker, 74 A.D.3d 1365, 1366, 903 N.Y.S.2d 264). BALKIN, J.P., ROMAN, MALTESE and BARROS, JJ., concur.