Opinion
190 KA 18-00837
04-30-2021
The PEOPLE of the State of New York, Respondent, v. Memphis DELACRUZ, Defendant-Appellant.
ANTHONY J. LAFACHE, UTICA, FOR DEFENDANT-APPELLANT. MEMPHIS DELACRUZ, DEFENDANT-APPELLANT PRO SE. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
ANTHONY J. LAFACHE, UTICA, FOR DEFENDANT-APPELLANT.
MEMPHIS DELACRUZ, DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts each of robbery in the first degree ( Penal Law § 160.15 [2], [3] ) and robbery in the second degree (§ 160.10 [1], [2] [a]). We affirm.
Contrary to defendant's contention in his main brief, viewing the evidence in the light most favorable to the People (see People v. Williams , 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 [1994] ), we conclude that the evidence is legally sufficient to establish his identity as one of the perpetrators of the crimes (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we also reject defendant's contention in his main brief that the verdict is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Although defendant contends that the victim's testimony was not credible, we note that " ‘[r]esolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury’ " ( People v. Carson , 122 A.D.3d 1391, 1393, 997 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ), and we see no reason to disturb the jury's resolution of those issues.
Contrary to defendant's further contention in his main brief, the charges against defendant and the codefendants were properly joined inasmuch as they were based upon a common scheme or plan (see CPL 200.40 [1] [b] ; People v. Wright , 166 A.D.3d 1022, 1023-1024, 88 N.Y.S.3d 457 [2d Dept. 2018], lv denied 32 N.Y.3d 1211, 99 N.Y.S.3d 228, 122 N.E.3d 1141 [2019] ). Moreover, the evidence against defendant and the codefendants was "supplied by the same eyewitness ..., and ... defendant's defense was by no means ‘antagonistic’ to that of the codefendant[s]" ( Wright , 166 A.D.3d at 1024, 88 N.Y.S.3d 457, citing People v. Mahboubian , 74 N.Y.2d 174, 186, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ).
Defendant's contention in his main brief that the People improperly failed to seek an advance ruling concerning the admissibility of evidence of defendant's involvement in a drug transaction is preserved for our review only insofar as it relates to the victim's testimony regarding that transaction; defense counsel failed to object to any such references made by the prosecution during opening statements (see People v. Strauss , 147 A.D.3d 1426, 1426, 46 N.Y.S.3d 376 [4th Dept. 2017], lv denied 29 N.Y.3d 1087, 64 N.Y.S.3d 177, 86 N.E.3d 264 [2017], reconsideration denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ). In any event, we reject that contention. "The court has discretion to admit evidence despite the failure of the People to provide advance notice of their intent to present such evidence ..., particularly where[, as here,] the defendant [is] aware of the evidence" ( People v. Maclean , 48 A.D.3d 1215, 1215, 850 N.Y.S.2d 819 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008], reconsideration denied 11 N.Y.3d 790, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ). Defendant's contention in his pro se supplemental brief that County Court erred in failing to give a limiting instruction with respect to that evidence is unpreserved for our review (see People v. Couser [appeal No. 1], 126 A.D.3d 1419, 1420, 5 N.Y.S.3d 787 [4th Dept. 2015], affd 28 N.Y.3d 368, 45 N.Y.S.3d 301, 68 N.E.3d 26 [2016] ).
Defendant also failed to preserve for our review the contention in his pro se supplemental brief that the court erred in sua sponte instructing the jury not to draw any adverse inference from defendant's failure to testify (see People v. Robinson , 1 A.D.3d 985, 986, 768 N.Y.S.2d 50 [4th Dept. 2003], lv denied 1 N.Y.3d 633, 777 N.Y.S.2d 32, 808 N.E.2d 1291 [2004], reconsideration denied 2 N.Y.3d 805, 781 N.Y.S.2d 304, 814 N.E.2d 476 [2004] ). In any event, under the circumstances of this case, we conclude that the court did not abuse its discretion in giving that instruction (see People v. Scully , 61 A.D.3d 1364, 1365, 877 N.Y.S.2d 782 [4th Dept. 2009], affd 14 N.Y.3d 861, 903 N.Y.S.2d 302, 929 N.E.2d 364 [2010] ; see generally People v. Vereen , 45 N.Y.2d 856, 857, 410 N.Y.S.2d 288, 382 N.E.2d 1151 [1978] ). Contrary to defendant's contention in his main brief, the sentence is not unduly harsh or severe.
We have considered defendant's remaining contentions in his pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.