PEOPLE v. RATLIFF (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (William J. O'Brien, J.), rendered November 22, 2016, convicting him of robbery in the second degree, assault in the second degree, assault in the third degree, and unlawful imprisonment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The defendant was indicted on numerous charges related to his alleged robbery and assault of the complainant.  Following a jury trial, the defendant was convicted of robbery in the second degree, assault in the second degree, assault in the third degree, and unlawful imprisonment in the second degree.

The defendant's contention that the evidence was legally insufficient to support his convictions because the complainant's testimony was incredible as a matter of law is unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946).  In any event, the complainant's testimony was neither internally inconsistent nor the source of all of the evidence of the defendant's guilt (see People v. Hampton, 21 N.Y.3d 277, 288, 970 N.Y.S.2d 716, 992 N.E.2d 1059).  Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).  The complainant's testimony was corroborated in crucial respects by surveillance videos and the evidence found at the crime scene (see People v. Torres, 130 A.D.3d 1082, 1086, 14 N.Y.S.3d 151;  People v. Brown, 36 A.D.3d 930, 931, 828 N.Y.S.2d 551).

The defendant's contention that he was deprived of a fair trial because the Supreme Court allowed certain expert testimony without qualifying the witnesses as experts, and failed to instruct the jury on expert witness testimony, is unpreserved for appellate review (see CPL 470.05[2] ).  In any event, the contention is without merit.  The witnesses' testimony concerning their qualifications and experience provided a sufficient foundation for their opinion testimony (see People v. Prowse, 60 A.D.3d 703, 704, 875 N.Y.S.2d 121).  The court was not required to formally declare or certify the witnesses to be experts (see id. at 704, 875 N.Y.S.2d 121;  see also People v. Legette, 96 A.D.3d 1078, 1079, 946 N.Y.S.2d 894;  People v. West, 86 A.D.3d 583, 583, 926 N.Y.S.2d 659;  People v. Jean–Laurent, 51 A.D.3d 818, 818–819, 859 N.Y.S.2d 658;  People v. Wagner, 27 A.D.3d 671, 672, 811 N.Y.S.2d 125;  People v. McNair, 26 A.D.3d 245, 246, 808 N.Y.S.2d 689).  Further, defense counsel's failure to preserve this issue did not constitute ineffective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Elder, 152 A.D.3d 787, 790, 59 N.Y.S.3d 134).

The People correctly concede that the defendant's conviction of assault in the second degree under Penal Law § 120.05(6) must be vacated, and that count of the indictment dismissed, as the assault in the second degree count is an inclusory concurrent count of robbery in the second degree under Penal Law § 160.10(2)(a) (see CPL 300.30[4];  300.40[3][b];  People v. Miller, 6 N.Y.3d 295, 302, 812 N.Y.S.2d 20, 845 N.E.2d 451;  People v. Mitchell, 59 A.D.3d 739, 741, 874 N.Y.S.2d 226).

In light of our determination, the defendant's remaining contentions have been rendered academic.

RIVERA, J.P., MALTESE, BARROS and CHRISTOPHER, JJ., concur.