People v. EversonPeople v. Everson
- Reporters:
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- Before:
- Smith J.P., Carni, Curran, Winslow
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of two counts of robbery in the first degree (
Addressing appeal No. 1 first, we note that defendant was originally charged in three indictments that were later consolidated with crimes arising from eight separate incidents that occurred between November 2008 and April 2010.
We reject defendant‘s contention in his main brief that County Court lacked jurisdiction with respect to counts one through three of the consolidated indictment, charging crimes arising from defendant‘s possession and sale of a pistol that he acquired in the State of Ohio. The People established territorial jurisdiction within New York (see
The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support defendant‘s conviction of counts one through six (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In addition, viewing
Defendant failed to preserve for our review his contention in his main brief that the conspiracy count was defective on the grounds that it alleged that defendant participated in multiple conspiracies (see generally People v Alfonso, 35 AD3d 269, 269 [1st Dept 2006], lv denied 8 NY3d 878 [2007]), and it failed to specify the underlying crimes that were the objects of the alleged conspiracies (see generally People v Wong, 133 AD2d 184, 185 [2d Dept 1987], lv denied 70 NY2d 878 [1987]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see
Contrary to defendant‘s further contention in his main brief, the court properly concluded that a
The record does not support defendant‘s contention in his main brief that the court refused to rule on his midtrial severance motion. Rather, the record establishes that the court‘s willingness to consider severance was contingent upon defendant‘s decision whether to testify, and when defendant elected not to testify, the motion was “implicitly but conclusively denied” (People v Gates, 152 AD3d 1222, 1223 [4th Dept 2017]; see People v Hampton, 113 AD3d 1131, 1132 [4th Dept 2014], lv denied 22 NY3d 1199 [2014], reconsideration denied 23 NY3d 1062 [2014], cert denied — US —, 135 S Ct 2389 [2015]). The court, moreover, properly denied the motion, inasmuch as it was untimely (see
Contrary to defendant‘s contention in his main brief, we conclude that the court‘s instructions to the jury with respect to counts 9 and 19, each charging criminal sale of a firearm in the third degree under
The evidence at trial is legally sufficient to establish the predicate conviction supporting the conviction of five counts of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]; see generally Bleakley, 69 NY2d at 495). Thus, defendant‘s challenge in his main brief to those charges based upon the presentation of erroneous information to the grand jury concerning the predicate conviction is not reviewable on appeal (see
Defendant failed to preserve for our review his challenge in his main brief to all but one of several allegedly improper comments made by the prosecutor during summation (see
Contrary to the final contention in defendant‘s main brief in appeal No. 1, the sentence is not unduly harsh or severe.
Contrary to the contentions in defendant‘s main and pro se supplemental briefs in both appeal Nos. 1 and 2, we conclude that defendant was provided meaningful representation at trial (see People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to meet his burden of
Addressing the remaining contentions in defendant‘s pro se supplemental brief in appeal No. 1, we conclude that the record does not support his contention that the court improperly deprived him of counsel of his choice when it relieved his first assigned attorney (cf. People v Griffin, 92 AD3d 1, 5-7 [1st Dept 2011], affd 20 NY3d 626 [2013]; see generally People v Childs, 247 AD2d 319, 325 [1st Dept 1998], lv denied 92 NY2d 849 [1998]). Nor does the record support defendant‘s contention that he was deprived of a fair trial as the result of the court‘s alleged bias against him (cf. People v Reynolds, 90 AD3d 956, 957 [2d Dept 2011]). We have examined defendant‘s remaining contention in his pro se supplemental brief and conclude that it is without merit.
In appeal No. 2, defendant contends in his main brief that his right to a public trial was violated when his family members and friends were excluded or removed from the courtroom. At the outset, we note that, while the right to a public trial is fundamental (see People v Martin, 16 NY3d 607, 611 [2011]), a claim that such right was violated requires preservation (see People v Alvarez, 20 NY3d 75, 81 [2012], cert denied 569 US 947 [2013]). Here, none of the alleged violations of defendant‘s right to a public trial was brought to the court‘s attention at a time when the court could have taken remedial action, and thus defendant‘s contention is not preserved for our review (see id.). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see
Entered: February 2, 2018
Mark W. Bennett
Clerk of the Court