People v. DunawayPeople v. Dunaway
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered February 7, 2011, convicting him of robbery in the first degree, kidnapping in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by reducing the defendant’s conviction of assault in the second degree to assault in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see
The defendant requested permission to present three demonstrations to the jury in order to challenge the reliability of his identification by the complainant, who had known the defendant for more than 15 years. First, the defendant requested that the jury be brought outside of the courthouse to view the complainant inside of his sport utility vehicle to explain how the complainant had been positioned while being kidnapped. The defendant also requested that he be allowed to open and close his hands in the courtroom, to discredit testimony that his hands were recognizable because some of his fingers became stiff and locked during cold weather. Additionally, the defendant requested permission to stand up in the courtroom so that the jury could view his height and frame. Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in denying these requests.
Here, the Supreme Court providently exercised its discretion in concluding that the value of the requested demonstrations did not outweigh their potential for prejudice or misleading the jury. The probative value of each demonstration was limited in light of the extensive testimony regarding the complainant’s ability to observe the defendant during the crimes, as well as photographs of the complainant inside his sport utility vehicle. Moreover, the conditions surrounding the proposed demonstrations were not substantially similar to the conditions present when the crimes were committed (see People v Acevedo, 40 NY2d at 704; People v Mercereau, 84 AD3d 1270, 1271 [2011]; People v Caballero, 34 AD3d at 692; People v Robinson, 133 AD2d 473, 473-474 [1987]; People v Hamilton, 112 AD2d 951 [1985]). Under the circumstances of this case, the Supreme Court properly concluded that the defendant failed to establish that the proposed demonstrations would be helpful to determine a “material factual issue” (
The defendant’s contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim of ineffective assistance” (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571, 575 n 2 [2011]; People v Credle, 124 AD3d 792, 793 [2015]). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852 [1978]). Accordingly, a
The People correctly concede that the defendant’s conviction of assault in the second degree should be reduced to assault in the third degree. On the record before us, the People failed to prove beyond a reasonable doubt that the complainant suffered a physical injury that was caused by a dangerous instrument (see
The defendant failed to preserve for appellate review his contention that the sentences imposed on his convictions of robbery in the first degree and kidnapping in the second degree improperly penalized him for exercising his right to a jury trial, “because he did not set forth the issue on the record at the time of sentencing” (People v Romero, 101 AD3d 906, 907 [2012]; see People v Garcia, 66 AD3d 699, 701 [2009]). In any event, the contention is without merit. The fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is not, standing alone, an indication that he was punished for asserting his right to proceed to trial (see People v Martinez, 26 NY3d 196 [2015]; People v Pena, 50 NY2d 400, 412 [1980]; People v Romero, 101 AD3d at 907; People v Griffin, 98 AD3d 688, 690 [2012]; People v Bradley, 73 AD3d 1198, 1199 [2010]). Further, a review of the record reveals no retaliation or vindictiveness against the defendant for electing to proceed to trial (see People v Griffin, 98 AD3d at 690). Moreover, the sentences imposed on the defendant’s convictions of robbery in the first degree and kidnapping in the second degree were not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant’s contention, raised in his pro se supplemental brief, that the evidence presented to the grand jury regarding robbery in the first degree and kidnapping in the second degree was legally insufficient is not reviewable on this appeal, since the defendant’s guilt of those crimes was proven beyond a reasonable doubt (see
The defendant’s contention, raised in his pro se supplemental brief, that he was deprived of his right to compulsory process and confrontation is unpreserved for appellate review (see
The defendant’s remaining contentions, raised in his pro se supplemental brief, are without merit.
Rivera, J.P., Dickerson, Miller and Maltese, JJ., concur.