THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. AKEEM SIMMONS ALSO KNOWN AS AKEEM SIMMON ALSO KNOWN AS AKEEM SIMMONS DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. AKEEM M. SIMMONS, ALSO KNOWN AS AKEEM M. SIMMON, ALSO KNOWN AS AKEEM SIMMONS, DEFENDANT–APPELLANT.

KA 15–00022

Decided: September 29, 2017

PRESENT:  WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF COUNSEL), FOR DEFENDANT–APPELLANT. LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him following a jury trial of burglary in the first degree (Penal Law § 140.30) and conspiracy in the fourth degree (§ 105.10), defendant contends that County Court should have held a hearing to determine whether there was an undisclosed plea agreement between the prosecutor and defendant's accomplice, who testified at defendant's trial.  We reject that contention.  At the start of the trial, the prosecutor stated on the record that “nothing has been offered [to the accomplice in return for his testimony].  There is no agreement.  There's no promise.”  The accomplice later testified under oath that there was no agreement.  Following the verdict but before sentencing, the accomplice pleaded guilty to a reduced charge.  Alleging that the accomplice's plea was evidence of an undisclosed plea agreement, defense counsel sought an adjournment of sentencing to address that alleged Brady violation.  Defense counsel acknowledged, however, that his claim of an undisclosed cooperation agreement was based solely on conjecture.  The court denied the request for an adjournment, noting that defendant could later file a motion pursuant to CPL article 440 if he obtained any evidence to support his theory of an undisclosed cooperation agreement.

If a cooperation agreement exists between the People and a prosecution witness and the provisions of that agreement are not disclosed to the court and jury, “such nondisclosure would require reversal” (People v. Littles, 295 A.D.2d 369, 370;  see generally People v. Novoa, 70 N.Y.2d 490, 496–498).  Here, however, there is “no basis in the record upon which to find that there were any undisclosed agreements” (People v. Delgado, 280 A.D.2d 431, 431;  cf.  Littles, 295 A.D.2d at 370;  People v. Pons, 236 A.D.2d 562, 563–564).  Defendant's contention is thus “based entirely on speculation and unwarranted assumptions” (Delgado, 280 A.D.2d at 431).

We reject defendant's further contentions that the conviction is not supported by legally sufficient evidence and that the verdict is contrary to the weight of the evidence.  The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495) and, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495).

Finally, considering defendant's criminal record, which includes two prior burglary convictions, we conclude that the sentence is not unduly harsh or severe.

Mark W. Bennett

Clerk of the Court