PEOPLE v. PRIETO (2025)

Judgment, Supreme Court, New York County (Robert Mandelbaum, J.), rendered March 13, 2020, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to 9 years, and otherwise affirmed.

Defendant's legal insufficiency claim challenging the People's proof of the display of “what appears to be” a firearm (Penal Law § 160.10[2][b]), is unpreserved, and we decline to review it in the interest of justice (see People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]).  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence, and there is no basis for disturbing the jury's credibility determinations (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007];  see also People v. Baque, 43 N.Y.3d 26, 229 N.Y.S.3d 62, 254 N.E.3d 606 [2024]).  The totality of the evidence, including testimony from the complainant and two eyewitnesses and defendant's false statements to police, established that defendant was the man who robbed the victim by informing her that he had a gun and intended to shoot her if she failed to hand over money and her cell phone, while concealing his right arm inside a backpack positioned in front of his body (see People v. Smith, 29 N.Y.3d 91, 96, 52 N.Y.S.3d 692, 75 N.E.3d 84 [2017];  People v. Flores, 223 A.D.3d 626, 203 N.Y.S.3d 596 [1st Dept. 2024], lv denied 41 N.Y.3d 983, 210 N.Y.S.3d 750, 234 N.E.3d 366 [2024]).

Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Almonte, 90 A.D.3d 579, 580, 935 N.Y.S.2d 293 [1st Dept. 2011], lv denied 19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206 [2012]).  Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal.  To the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]).  Defendant has not shown that defense counsel's failure to object to the admission of cell phone evidence, the prosecutor's request for an expanded jury instruction on the “display” element, defense counsel's summation, or the prosecutor's summation deprived him of a fair trial or affected the outcome of the case (see People v. Cass, 18 N.Y.3d 553, 564, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012];  People v. Taylor, 1 N.Y.3d 174, 177–178, 770 N.Y.S.2d 711, 802 N.E.2d 1109 [2003]).  Nor does counsel's failure to request a cross-racial identification charge inherently amount to deficient performance (see People v. Robbs, 233 A.D.3d 1456, 1458, 224 N.Y.S.3d 283 [4th Dept. 2024], lv denied 43 N.Y.3d 1056, 239 N.Y.S.3d 75, 77, 265 N.E.3d 1092, 1094 [2025]).

We find the sentence excessive to the extent indicated.