PEOPLE v. MCCALL

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jemar M. MCCALL, Defendant–Appellant.

1082

Decided: November 15, 2019

PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ. LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, DAVISON LAW OFFICE PLLC (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

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 robbery in the first degree (Penal Law § 160.15[4]) and robbery in the second degree (§ 160.10[1] ).  Defendant contends that the verdict is against the weight of the evidence because the People's key witness on the issue of identity was not credible.  We reject that contention.  Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that “the jury was in the best position to assess the credibility of the witness[ ] and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded” (People v. Orta, 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812 [4th Dept. 2004], lv. denied 4 N.Y.3d 801, 795 N.Y.S.2d 176, 828 N.E.2d 92 [2005]; see People v. Elmore, 175 A.D.3d 1003, 1005, 107 N.Y.S.3d 252 [4th Dept. 2019]).  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 (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).  Inasmuch as he did not request an adverse inference instruction at trial, defendant failed to preserve for our review his related contention that, in performing our weight of the evidence review, we should draw an adverse inference against the People based upon their alleged failure to call certain witnesses (see generally People v. Bradley, 108 A.D.3d 1101, 1102, 968 N.Y.S.2d 797 [4th Dept. 2013], lv. denied 22 N.Y.3d 1039, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013]).

Defendant next contends that County Court failed to satisfy its obligation to determine whether he was eligible for youthful offender treatment (see generally People v. Middlebrooks, 25 N.Y.3d 516, 525–527, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015]; People v. Rudolph, 21 N.Y.3d 497, 499–501, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013]).  We reject that contention.  “[A] court in an armed felony case can satisfy its obligation under Middlebrooks by declining to adjudicate the defendant a youthful offender after consideration on the record of factors pertinent to a determination whether an eligible youth should be adjudicated a youthful offender” (People v. Stitt, 140 A.D.3d 1783, 1784, 33 N.Y.S.3d 641 [4th Dept. 2016], lv denied 28 N.Y.3d 937, 40 N.Y.S.3d 365, 63 N.E.3d 85 [2016]; see People v. Rice, 175 A.D.3d 1826, 1826, 109 N.Y.S.3d 808 [4th Dept. 2019]).  In this case, the court “implicitly resolved the threshold issue of eligibility in defendant's favor” (People v. Macon, 169 A.D.3d 1439, 1440, 92 N.Y.S.3d 812 [4th Dept. 2019], lv denied 33 N.Y.3d 978, 101 N.Y.S.3d 224, 124 N.E.3d 713 [2019]; see People v. Keith B.J., 158 A.D.3d 1160, 1160, 70 N.Y.S.3d 291 [4th Dept. 2018]).

Contrary to the further contention of defendant, even assuming, arguendo, that defendant was eligible for youthful offender status, we conclude that the court did not abuse its discretion in refusing to grant him that status (see Rice, 175 A.D.3d at 1826, 109 N.Y.S.3d 808; Macon, 169 A.D.3d at 1440, 92 N.Y.S.3d 812), particularly in light of the seriousness of the offense and defendant's failure to accept any responsibility (see People v. Ford, 144 A.D.3d 1682, 1683, 42 N.Y.S.3d 491 [4th Dept. 2016], lv. denied 28 N.Y.3d 1184, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017]).  In addition, we perceive no basis for exercising our own discretion in the interest of justice to adjudicate defendant a youthful offender (cf. Keith B.J., 158 A.D.3d at 1160–1161, 70 N.Y.S.3d 291; People v. Thomas R.O., 136 A.D.3d 1400, 1402–1403, 25 N.Y.S.3d 766 [4th Dept. 2016]).

Finally, the sentence is not unduly harsh or severe.