PEOPLE v. GAST (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward McLoughlin, J.), rendered November 18, 2022, convicting him of robbery in the first degree as a hate crime, robbery in the first degree, attempted robbery in the first degree as a hate crime, attempted robbery in the first degree, robbery in the second degree as a hate crime (two counts), robbery in the second degree (two counts), attempted robbery in the second degree as a hate crime (two counts), attempted robbery in the second degree (two counts), burglary in the first degree as a hate crime (three counts), burglary in the first degree (two counts), burglary in the second degree, criminal possession of a weapon in the second degree, assault in the third degree as a hate crime (two counts), assault in the third degree (two counts), conspiracy in the fifth degree, and conspiracy in the sixth degree, upon a jury verdict, and sentencing him as a persistent felony offender to concurrent indeterminate terms of imprisonment of 25 years to life on the convictions of robbery in the first degree as a hate crime, robbery in the first degree, attempted robbery in the first degree as a hate crime, attempted robbery in the first degree, burglary in the first degree as a hate crime under counts 15 and 17 of the indictment, burglary in the second degree, criminal possession of a weapon in the second degree, and on each conviction of robbery in the second degree as a hate crime, robbery in the second degree, attempted robbery in the second degree as a hate crime, attempted robbery in the second degree, burglary in the first degree, and assault in the third degree as a hate crime, to run concurrently with definite terms of incarceration of 364 days for the conviction of conspiracy in the fifth degree and each conviction of assault in the third degree, and a definite term of incarceration of 90 days for the conviction of conspiracy in the sixth degree, and an indeterminate term of imprisonment of 15 years to life on the conviction of burglary in the first degree as a hate crime under count 13 of the indictment to run consecutively with all other sentences.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentence imposed on the conviction of burglary in the first degree as a hate crime under count 13 of the indictment shall run concurrently with all other sentences imposed;  as so modified, the judgment is affirmed.

The defendant contends that his convictions for robbery, burglary, assault, and conspiracy, as well as his hate crime convictions for robbery, burglary, and assault, are against the weight of the evidence because the only evidence to support those convictions was accomplice testimony.  In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).

Pursuant to CPL 60.22(1), “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.”  “The corroborative evidence need not show the commission of the crime;  it need not show that defendant was connected with the commission of the crime” (People v. Reome, 15 NY3d 188, 192 [internal quotation marks omitted] ).  “It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth” (People v. J.S. Atl. Dental, P.C., 202 AD3d 708, 710 [internal quotation marks omitted] ).  The role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that the defendant committed it (see People v. Reome, 15 NY3d at 192;  People v. Paige, 134 AD3d 1048, 1051).

Here, contrary to the defendant's contention, there was ample evidence corroborating the accomplice testimony tending to connect the defendant to these crimes (see People v. Silverstein, 236 AD3d 827, 828;  People v. Paige, 134 AD3d at 1051), and upon reviewing the record here, we are satisfied that the verdict of guilt as to these crimes was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

The defendant's contention that the County Court did not comply with the notice provisions set forth in CPL 400.20 in adjudicating him a persistent felony offender is unpreserved for appellate review (see People v. Proctor, 79 N.Y.2d 992, 994;  People v. Hargroves, 27 AD3d 765), and we decline to reach the contention in the exercise of our interest of justice jurisdiction (see People v. Haney, 126 AD3d 724).

The defendant failed to demonstrate that his trial counsel was ineffective in not moving to preclude unnoticed (see CPL 710.30) photographs taken of the defendant at the time of his arrest and downloaded from the defendant's cell phone.  Defense counsel cannot be deemed ineffective for failing to make an objection or motion that would have little chance of success (see People v. Caban, 5 NY3d 143, 152).  The relevant photographs did not relate to a pretrial identification of the defendant which was the product of a police-arranged procedure.  Consequently, notice pursuant to CPL 710.30 was not required (see People v. Argueta–Guardado, 214 AD3d 821, 822;  People v. Hernandez, 136 AD3d 1055, 1055–1056).

The defendant's contention, in effect, regarding the propriety of a restitution order is unpreserved for appellate review, since the defendant failed to object to the payment of restitution, failed to object to the amount of restitution, and failed to request a restitution hearing (see People v. White, 237 AD3d 861, 863).

The sentence imposed was excessive to the extent indicated herein (see People v. Brisman, 43 NY3d 322, 325;  People v. Suitte, 90 A.D.2d 80).

The defendant's contention that he has been denied a full and fair record on appeal is based on matter dehors the record and, therefore, cannot be reviewed on direct appeal (see generally People v. White, 237 AD3d at 863;  People v. Taylor, 237 AD3d 756, 756–757).

The defendant's remaining contentions are without merit.

CONNOLLY, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur.