PEOPLE v. BRADLEY (2022)

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, inter alia, robbery in the second degree (Penal Law § 160.10 [2] [b]). We affirm.

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 conclude that the verdict is not against the weight of the evidence as to identity (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Indeed, an acquittal would have been unreasonable on this record given the uncontested fact that defendant was apprehended, in the middle of the night, driving a car that had been carjacked about 10 minutes earlier and two miles away by a man who, as detailed in the victim's contemporaneous 911 call, looked and dressed exactly like defendant. Defendant's theory of the case—i.e., that he just happened across an abandoned vehicle that, unbeknownst to him, had been carjacked within the past 10 minutes by a different man who looked and dressed exactly like him—“is so implausible that it could not create a reasonable doubt as to defendant's guilt” (People v. Isaac, 195 A.D.3d 1410, 1410, 145 N.Y.S.3d 443 [4th Dept. 2021], lv denied 37 N.Y.3d 992, 152 N.Y.S.3d 419, 174 N.E.3d 359 [2021]).

Defendant further contends that, by addressing him by name at one point during a brief colloquy concerning the victim's trial testimony, Supreme Court unduly interjected itself into the case and irreparably tainted the victim's in-court identification. Defendant's arguments, however, are unpreserved for appellate review (see People v. Brown, 90 A.D.3d 575, 576, 936 N.Y.S.2d 537 [1st Dept. 2011], affd 21 N.Y.3d 739, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013]; People v. Kennard, 160 A.D.3d 1378, 1380, 76 N.Y.S.3d 309 [4th Dept. 2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 431, 108 N.E.3d 505 [2018]; cf. People v. Perry, 251 A.D.2d 895, 896-897, 674 N.Y.S.2d 844 [3d Dept. 1998], lv denied 94 N.Y.2d 827, 702 N.Y.S.2d 598, 724 N.E.2d 390 [1999]). Under the circumstances, defendant's belated application for a mistrial—which asserted only that the court had tainted the victim's in-court identification—was inadequate to preserve that particular argument (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006]; People v. McCorkle, 272 A.D.2d 273, 274, 709 N.Y.S.2d 519 [1st Dept. 2000], lv denied 95 N.Y.2d 936, 721 N.Y.S.2d 612, 744 N.E.2d 148 [2000]). In any event, the court's fleeting reference to defendant by his name was innocuous and inconsequential, and it could not have prejudiced him or impacted the verdict in any sense (see People v. Robles, 116 A.D.3d 1071, 1072, 983 N.Y.S.2d 885 [2d Dept. 2014], lv denied 24 N.Y.3d 1088, 1 N.Y.S.3d 15, 25 N.E.3d 352 [2014]). Contrary to defendant's assertion, the record squarely belies any comparison between the court's polite appellation in this case and the prosecutor's impermissibly suggestive conduct in People v. Powell, 67 N.Y.2d 661, 662, 499 N.Y.S.2d 669, 490 N.E.2d 536 (1986).

Finally, the sentence is not unduly harsh or severe.