PEOPLE v. KHAUKA (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]) and one count of assault in the third degree (§ 120.00 [1]).

Defendant contends that the evidence is legally insufficient to support the conviction on the issue of his identity as one of the three men involved in the subject crimes. We reject that contention. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that the evidence is legally sufficient to establish defendant's identity as one of the three people who committed the robbery (see People v. Rainey, 231 A.D.3d 1533, 1534, 218 N.Y.S.3d 875 [4th Dept. 2024], lv denied 43 N.Y.3d 932, 229 N.Y.S.3d 87, 254 N.E.3d 631 [2025]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Among other things, video of the incident and testimony from those who observed it reflected that a man wearing a ski mask, generally fitting defendant's description, had been involved in the robbery. Less than two hours after the robbery, the police stopped a vehicle that contained defendant, his two accomplices, the victim's property, and, next to defendant, a black knit face mask. Furthermore, one of the accomplices testified at trial as to defendant's involvement in the crime. To the extent that defendant contends that the accomplice testimony was not sufficiently corroborated, we conclude that the other evidence at trial sufficiently “tend[ed] to connect ․ defendant with the commission of the crime[s] in such a way as [could] reasonably satisfy the jury that the accomplice [was] telling the truth” (People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010] [internal quotation marks omitted]; see People v. Gause, 230 A.D.3d 1573, 1575, 219 N.Y.S.3d 496 [4th Dept. 2024], lv denied 43 N.Y.3d 930, 229 N.Y.S.3d 86, 254 N.E.3d 630 [2025]). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we also conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant further contends that he was denied effective assistance of counsel as a result of defense counsel's failure to make a motion to dismiss the indictment based on the alleged denial of his statutory right to a speedy trial (see CPL 30.30 [1] [a]). A failure of defense counsel to assert a meritorious statutory speedy trial claim “is, by itself, a sufficiently egregious error to render a defendant's representation ineffective” (People v. Sweet, 79 A.D.3d 1772, 1772, 917 N.Y.S.2d 768 [4th Dept. 2010] [internal quotation marks omitted]; see People v. Bailey, 195 A.D.3d 1486, 1487, 147 N.Y.S.3d 850 [4th Dept. 2021], lv denied 37 N.Y.3d 990, 152 N.Y.S.3d 400, 174 N.E.3d 340 [2021]). A defendant is not required, however, to show that such a motion would have been meritorious in order to prevail on an ineffective assistance of counsel claim; the defendant must demonstrate only that there was an “absence of strategic or other legitimate explanations for counsel's failure to pursue [a] colorable [motion]” (People v. Carver, 27 N.Y.3d 418, 420, 33 N.Y.S.3d 857, 53 N.E.3d 734 [2016] [internal quotation marks omitted]). We conclude here that the record on appeal is inadequate to enable us to determine whether a CPL 30.30 motion would have been “colorable ․ and, if so, whether [defense] counsel had a strategic or legitimate reason for failing to [make the motion]” (People v. Heverly, 230 A.D.3d 1534, 1535, 219 N.Y.S.3d 492 [4th Dept. 2024], lv denied 42 N.Y.3d 1053, 225 N.Y.S.3d 664, 250 N.E.3d 676 [2024]). Thus, defendant's contention “is appropriately raised by way of a motion pursuant to CPL article 440” (People v. Henderson, 234 A.D.3d 1254, 1256, 226 N.Y.S.3d 415 [4th Dept. 2025] [internal quotation marks omitted]; see People v. Alverado, 178 A.D.3d 1465, 1466, 112 N.Y.S.3d 636 [4th Dept. 2019], lv denied 35 N.Y.3d 940, 124 N.Y.S.3d 271, 147 N.E.3d 541 [2020]).

Contrary to defendant's further contention, County Court did not abuse its discretion in denying his motion to preclude the testimony of his accomplice due to the People's belated disclosure of the accomplice's criminal history (see generally People v. Everson, 240 A.D.3d 1343, 1345, 239 N.Y.S.3d 424 [4th Dept. 2025]). If a party demonstrates that they were prejudiced by a belated disclosure, the discovery sanction or remedy to be imposed for such a violation must be “appropriate” (CPL 245.80 [1] [former (a)]). Even absent a showing of prejudice, however, the party “shall be given reasonable time to prepare and respond to the new material” (id.). Here, defendant made no specific showing of prejudice. We therefore conclude that no sanction was required (see People v. Phillips, 239 A.D.3d 1421, 1423-1424, 237 N.Y.S.3d 877 [4th Dept. 2025], lv denied 44 N.Y.3d 1012, 244 N.Y.S.3d 498, 271 N.E.3d 700 [2025]; People v. Caruso, 219 A.D.3d 1682, 1684, 197 N.Y.S.3d 367 [4th Dept. 2023]). Further, the court provided defense counsel an opportunity to review the material and specifically asked defense counsel if he wanted an adjournment to further review it. Defense counsel responded that an adjournment was not necessary and opted to proceed (see generally Caruso, 219 A.D.3d at 1684, 197 N.Y.S.3d 367).

Finally, we conclude that the sentence is not unduly harsh or severe.