People v. DraytonPeople v. Drayton
Decided and Entered: May 14, 2020
Calendar Date: March 24, 2020
Before: Garry, P.J., Egan Jr., Lynch, Aarons and Reynolds Fitzgerald, JJ.
Cliff Gordon, Monticello, for appellant, and appellant pro se.
Meagan K. Galligan, Acting District Attorney, Monticello, for respondent.
Egan Jr., J.
Appeal from a judgment of the Supreme Court (Schick, J.), rendered February 7, 2017 in Sullivan County, upon a verdict convicting defendant of the crimes of robbery in the second degree and conspiracy in the fourth degree.
In January 2016, defendant was indicted for two counts of robbery in the second degree, two counts of conspiracy in the fourth degree and one count of resisting arrest, stemming from the armed robbery of a confidential informant (hereinafter the victim) during a police-monitored controlled purchase of heroin and guns in the Village of Monticello, Sullivan County. The indictment charged defendant as having acted in concert with four other codefendants in a scheme to rob the victim. Defendant‘s case was subsequently severed from that of his codefendants and, following a jury trial, he was convicted of one count of robbery in the second degree and one count of conspiracy in the fourth degree.1 Supreme Court denied defendant‘s subsequent motions seeking to set aside the verdict and for a new trial. He was thereafter sentenced, as a second felony offender, to a prison term of 12 years, to be followed by five years of postrelease supervision, on the robbery count, to run concurrently with a prison term of 2 to 4 years on the conspiracy count. Defendant appeals.
Defendant contends that there was legally insufficient evidence to support his conviction for conspiracy in the fourth degree and that the verdict was against the weight of the evidence. Initially, inasmuch as defendant failed to renew his motion to dismiss for lack of legally sufficient evidence following the close of his proof, his legal sufficiency claim is unpreserved
As relevant here, to be found guilty of robbery in the second degree, the People were required to prove that defendant forcibly stole property and, “[i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [d]isplay[ed] what appear[ed] to be a pistol, revolver . . . or other firearm” (
The evidence at trial established that, on January 7, 2016, Rashad Kearse, Donovan Price and defendant‘s brother, Frank Drayton, met at Drayton‘s hotel room where they were shown two guns that Drayton had for sale.2 Kearse and Price thereafter left the hotel room and met with codefendant Matthew Miller and told him about the guns. In turn, Miller contacted the victim, whom he had regularly sold heroin to in the past and who he knew was also looking to purchase guns. Unbeknown to Miller, however, the victim was a confidential informant for the Hudson Valley Safe Streets Task Force and, following a series of text messages, the victim arranged to meet Miller at an apartment complex that evening to conduct a controlled purchase of heroin and two guns.3
Prior to meeting with the victim, Miller, Kearse, Drayton, Price and defendant met at Miller‘s apartment and discussed the pending sale of the heroin and guns to the victim. According
Although the individual in the purple jacket was not apprehended that evening, during a subsequent search of the area where he fled, police discovered a purple jacket, a sock, a blue pair of sweatpants containing defendant‘s driver‘s license and a magazine with blank rounds of ammunition. A search of the minivan also revealed a wallet containing defendant‘s Social Security card. Subsequent testing established that defendant was the major DNA contributor to the purple jacket,
Although a different verdict would not have been unreasonable, viewing the foregoing evidence in a neutral light, we find that defendant‘s convictions are not against the weight of the evidence. The evidence identifying defendant as the individual in the purple jacket was overwhelming and, contrary to defendant‘s assertion, the fact that he subsequently returned the victim‘s cell phone within minutes after it was initially stolen did not serve to negate his intent to hold the victim at gunpoint and forcibly steal his money and heroin (see People v Lamont, 25 NY3d 315, 319 [2015]; People v Deleon, 149 AD3d 1273, 1274 [2017], lv denied 29 NY3d 1077 [2017]; People v Ramos, 12 AD3d 316, 316 [2004], lv denied 4 NY3d 767 [2005]). To the extent that defendant claims that the testimony of the victim and Kearse was not credible, these issues were fully explored before the jury on both direct and cross-examination and ultimately posed a credibility determination for the jury to resolve (see People v Criss, 151 AD3d 1275, 1279 [2017], lv denied 30 NY3d 979 [2017]). Further, ample evidence was presented from which the jury could find that, prior to the robbery, defendant knowingly entered into an agreement, either express or implied, with his codefendants to rob the victim and thereafter executed said plan when he and Drayton held the victim at gunpoint and stole his property, supporting his convictions for robbery in the second degree and conspiracy in the fourth degree (see People v Leduc, 140 AD3d 1305, 1307 [2016], lv denied 28 NY3d 932 [2016]; People v Brown, 249 AD2d 835, 836 [1998]; People v Givens, 181 AD2d 1031, 1031-1032 [1982], lv denied 79 NY2d 1049 [1992]; see also People v Wilson, 173 AD3d 1853, 1854 [2019]).
Defendant‘s contention that he was deprived of a fair trial as a result of prosecutorial misconduct based on comments that the prosecutor made during the direct examination of the victim and summation was not preserved for appellate review, as he failed to render contemporaneous objections to these comments during the trial (see People v Johnson, ___ AD3d ___, ___, 2020 NY Slip Op 01668, *1 [2020]; People v Wynn, 149 AD3d 1252, 1255-1256 [2017], lv denied 29 NY3d 1136 [2017]). Nor are we persuaded that
The remaining arguments raised in defendant‘s supplemental pro se brief do not require extended discussion. Defendant‘s jurisdictional challenge to the underlying felony complaints was rendered academic, as these complaints were subsequently superseded by a valid indictment (see People v Thacker, 173 AD3d 1360, 1362 [2019], lv denied 34 NY3d 938 [2019]). Contrary to defendant‘s assertion, Kearse‘s cooperation agreement with the People was extensively discussed at trial and defense counsel was able to thoroughly cross-examine him with regard thereto, rendering meritless his claim that the People failed to disclose such an agreement pursuant to Brady v Maryland (373 US 83 [1963]). Finally, to the extent that defendant claims that his arrest was unlawful, he failed to preserve this issue for review by making an appropriate motion before Supreme Court (see
Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.