From Casetext: Smarter Legal Research

People v. Rogers

Supreme Court, Appellate Division, Second Department, New York.
Apr 24, 2012
942 N.Y.S.2d 602 (N.Y. App. Div. 2012)

Opinion

2012-04-24

The PEOPLE, etc., respondent, v. Darryl ROGERS, Jr., appellant.

Yasmin Daley Duncan, Brooklyn, N.Y., for appellant, and appellant pro se. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.


Yasmin Daley Duncan, Brooklyn, N.Y., for appellant, and appellant pro se. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered February 4, 2010, convicting him of murder in the second degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a weapon in the second degree under count two of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to disprove his justification defense beyond a reasonable doubt is unpreserved 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). 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 disprove the defendant's justification defense beyond a reasonable doubt ( see Penal Law § 35.15; People v. Garcia, 89 A.D.3d 862, 862–863, 932 N.Y.S.2d 357; People v. Seals, 78 A.D.3d 742, 909 N.Y.S.2d 653). Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the jury's rejection of the justification defense and the verdict of guilt on the count of murder in the second degree 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 defendant's challenge to the legal sufficiency of the evidence supporting his conviction of criminal use of a firearm in the first degree is unpreserved for appellate review ( see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d at 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 criminal use of a firearm in the first degree when considered in light of the trial court's charge as given without exception ( see People v. Ford, 11 N.Y.3d 875, 878, 874 N.Y.S.2d 859, 903 N.E.2d 256; People v. Sala, 95 N.Y.2d 254, 260, 716 N.Y.S.2d 361, 739 N.E.2d 727). Moreover, upon the exercise of our factual review power ( see CPL 470.15[5] ), we are constrained to weigh the evidence in light of the elements of the crime as charged without objection by the defendant ( see People v. Johnson, 10 N.Y.3d 875, 860 N.Y.S.2d 762, 890 N.E.2d 877; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Cooper, 88 N.Y.2d 1056, 1058, 651 N.Y.S.2d 7, 673 N.E.2d 1234; People v. Solis, 43 A.D.3d 1190, 1191, 842 N.Y.S.2d 83; People v. Dudley, 52 A.D.3d 840, 859 N.Y.S.2d 376). Having done so, we are satisfied that the verdict of guilt with respect to the conviction of criminal use of a firearm in the first degree was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Romero, 7 N.Y.3d at 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

However, under the circumstances, the conviction of criminal possession of a weapon in the second degree under count two of the indictment was an inclusory concurrent count of the conviction of criminal use of a firearm in the first degree, and that count should therefore have been dismissed ( see CPL 300.40[3][b]; People v. Fowler, 45 A.D.3d 1372, 1374, 845 N.Y.S.2d 599; People v. Luster, 148 A.D.2d 305, 306, 538 N.Y.S.2d 273).

Viewing the record as a whole, we find that the defendant was not deprived of the effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review ( see CPL 470.05[2]; People v. Wright, 90 A.D.3d 679, 933 N.Y.S.2d 887). In any event, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to defense counsel's summation ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564).

The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.


Summaries of

People v. Rogers

Supreme Court, Appellate Division, Second Department, New York.
Apr 24, 2012
942 N.Y.S.2d 602 (N.Y. App. Div. 2012)
Case details for

People v. Rogers

Case Details

Full title:The PEOPLE, etc., respondent, v. Darryl ROGERS, Jr., appellant.

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

Date published: Apr 24, 2012

Citations

942 N.Y.S.2d 602 (N.Y. App. Div. 2012)
94 A.D.3d 1152
2012 N.Y. Slip Op. 3224

Citing Cases

People v. Clark

However, I agree that the merits of this contention should be reached in the interest of justice. Viewing the…

People v. Clark

However, I agree that the merits of this contention should be reached in the interest of justice. Viewing the…