DURANT, EVERETT M., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1315
KA 09-01799
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
EVERETT M. DURANT, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMANDA L. DREHER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered June 10, 2009. The judgment convicted defendant, upon a
jury verdict, of robbery in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of robbery in the second degree (Penal Law §
160.10 [1]). Viewing the evidence in light of the contested element
of larcenous intent as charged to the jury (see generally People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention that the
verdict is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). “Where, as here, witness credibility is
of paramount importance to the determination of guilt or innocence,
the appellate court must give [g]reat deference . . . [to the]
fact-finder’s opportunity to view the witnesses, hear the testimony
and observe demeanor” (People v McMillon, 77 AD3d 1375, 1376, lv
denied 16 NY3d 897 [internal quotation marks omitted]). While a
finding that defendant did not have the requisite intent would not
have been unreasonable, “it cannot be said that the jury failed to
give the evidence the weight it should be accorded” (id.). The victim
testified that defendant stole his wallet during a group assault on
him, and the People presented evidence establishing that defendant
“knowingly participated and continued to participate even after his
companion[s’] intentions [to take the victim’s cell phone] became
clear” and thus “shared a ‘community of purpose’ with his
companion[s]” (People v Allah, 71 NY2d 830, 832). Contrary to
defendant’s further contention, County Court properly denied his
request for an adverse inference charge concerning the failure of the
police to record his interrogation electronically (see McMillon, 77
-2- 1315
KA 09-01799
AD3d at 1375; People v Hammons, 68 AD3d 1800, 1801, lv denied 14 NY3d
801).
Entered: December 27, 2013 Frances E. Cafarell
Clerk of the Court