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People v. Brown

Supreme Court, Appellate Division, Second Department, New York.
Jul 30, 2014
989 N.Y.S.2d 866 (N.Y. App. Div. 2014)

Opinion

2014-07-30

The PEOPLE, etc., respondent, v. Shawn BROWN, appellant.

Gary E. Eisenberg, New City, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Richard Longworth Hecht of counsel), for respondent.


Gary E. Eisenberg, New City, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu and Richard Longworth Hecht of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered March 23, 2010, convicting him of robbery in the second degree (two counts), upon a jury verdict, and sentencing him to two concurrent determinate terms of imprisonment of eight years, followed by a period of postrelease supervision of five years.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the determinate terms of imprisonment imposed from eight years to six years; as so modified, the judgment is affirmed.

Following a jury trial, the defendant was convicted of two counts of robbery in the second degree for two separate robberies that occurred on the same night in Yonkers. The defendant contends that the evidence was legally insufficient to prove that he displayed what appeared to be a firearm ( see Penal Law § 160.10[2][b] ) in the second robbery because the complainant stated that she was 80% sure that the gun was a fake, which it turned out to be. The defendant's contention is unpreserved for appellate review, as his general motion for a trial order of dismissal did not create a question of law for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Finger, 95 N.Y.2d 894, 894, 716 N.Y.S.2d 34, 739 N.E.2d 290;People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;People v. Bynum, 70 N.Y.2d 858, 859, 523 N.Y.S.2d 492, 518 N.E.2d 4;People v. Stahl, 53 N.Y.2d 1048, 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876). In any event, his contention is without merit. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt with respect to the second robbery 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). The subject complainant testified that she believed that there was a 20% chance that the gun was real, and that she was afraid for her life at time she handed her money to the defendant. “The complainant was not required to call the defendant's bluff, but could resolve any doubts in favor of the risk presented, and the jury could reasonably find that the complainant had believed that the gun displayed might have been real” ( People v. Kaur, 204 A.D.2d 573, 573–574, 612 N.Y.S.2d 66;see People v. Colon, 116 A.D.3d 1234, 984 N.Y.S.2d 438).

The defendant's contention that the evidence was legally insufficient to establish his identity as the perpetrator of the subject crimes is also unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d at 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;People v. Finger, 95 N.Y.2d at 894, 716 N.Y.S.2d 34, 739 N.E.2d 290;People v. Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;People v. Bynum, 70 N.Y.2d at 859, 523 N.Y.S.2d 492, 518 N.E.2d 4;People v. Stahl, 53 N.Y.2d at 1050, 442 N.Y.S.2d 488, 425 N.E.2d 876). In any event, 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 beyond a reasonable doubt. Furthermore, the verdict of guilt was not against the weight of the evidence.

The sentence imposed was excessive to the extent indicated herein. LEVENTHAL, J.P., CHAMBERS, AUSTIN and HINDS–RADIX, JJ., concur.


Summaries of

People v. Brown

Supreme Court, Appellate Division, Second Department, New York.
Jul 30, 2014
989 N.Y.S.2d 866 (N.Y. App. Div. 2014)
Case details for

People v. Brown

Case Details

Full title:The PEOPLE, etc., respondent, v. Shawn BROWN, appellant.

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Jul 30, 2014

Citations

989 N.Y.S.2d 866 (N.Y. App. Div. 2014)
119 A.D.3d 953
2014 N.Y. Slip Op. 5553

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