At page 685 Assessing sufficiency of evidence and sentencing discretion27 citing cases“We also reject defendant’s contention that the sentences imposed by County Court were harsh and excessive.”
- People v. Damon, 200 A.D.3d 1323 (N.Y. App. Div. 3d Dep't 2021).publishedThe record reflects that neither is present and, therefore, the sentence will not be disturbed ( see People v Gunn , 144 AD3d 1193, 1196 [2016], lv denied 28 NY3d 1145 [2017]; People v Dolphy , 257 AD2d 681, 685 [1999], lv denied 93 NY2d 8…
- People v. Brown, 90 A.D.3d 545 (N.Y. App. Div. 1st Dep't 2011).publishedFurther, in view of defendant’s extensive criminal history of robberies and the violent nature of this armed robbery, we perceive no basis for reducing the sentence (see People v Dolphy, 257 AD2d 681, 685 [1999], lv denied 93 NY2d 872 [199…
- People v. Tatro, 53 A.D.3d 781 (N.Y. App. Div. 3d Dep't 2008).publishedFinally, despite defendant’s youth, given the circumstances of the crimes at hand and defendant’s criminal history, which includes a prior felony, we conclude that a reduction in defendant’s sentence is not warranted (see People v Demand,…
- People v. Kirton, 36 A.D.3d 1011 (N.Y. App. Div. 3d Dep't 2007).publishedFurther, in view of defendant’s extensive criminal history of robberies and the violent nature of this armed robbery and efforts to evade capture, both of which exposed many innocent members of the public and law enforcement officers to gr…
- People v. Dukes, 30 A.D.3d 682 (N.Y. App. Div. 3d Dep't 2006).publishedThis evidence, presented and analyzed in a light most favorable to the prosecution, supports the jury’s determination that defendant shot at the victim with the intent to cause him serious bodily injury (see People v Dolphy, 257 AD2d 681,…
- People v. Mabry, 27 A.D.3d 835 (N.Y. App. Div. 3d Dep't 2006).publishedFinally, we find no abuse of discretion or any extraordinary circumstances that would warrant our modification of the sentence in the interest of justice (see People v Dedmon, 10 AD3d 738, 739 [2004], lv denied 3 NY3d 756 [2004]; People v…
- People v. Wallis, 24 A.D.3d 1029 (N.Y. App. Div. 3d Dep't 2005).publishedDefendant demonstrates neither extraordinary circumstances nor an abuse of discretion which would warrant modification (see People v Fernandez, 7 AD3d 886, 887 [2004]; People v Dolphy, 257 AD2d 681, 685 [1999], lv denied 93 NY2d 872 [1999]…
- People v. Wright, 22 A.D.3d 873 (N.Y. App. Div. 3d Dep't 2005).publishedFinally, despite defendant being 19 years old at the time of these crimes, we cannot say that County Court’s imposition of maximum consecutive sentences was an abuse of discretion, and we discern no extraordinary circumstances warranting m…
- People v. Bridges, 16 A.D.3d 911 (N.Y. App. Div. 3d Dep't 2005).publishedThe sentence will not be disturbed absent a clear abuse of discretion or extraordinary circumstances warranting modification (see People v Mitchell, 289 AD2d 776, 780 [2001], lv denied 98 NY2d 653 [2002]; People v Dolphy, 257 AD2d 681, 685…
- People v. Dedmon, 10 A.D.3d 738 (N.Y. App. Div. 3d Dep't 2004).publishedIt is well settled that a sentence within the statutory parameters will not be disturbed absent an abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v Irizarry,…
Show 17 more citing cases
- People v. Fernandez, 7 A.D.3d 886 (N.Y. App. Div. 3d Dep't 2004).publishedFurthermore, given defendant’s inability to abide by the terms of probation, we reject defendant’s contention that the sentence imposed was harsh or excessive (see People v Olivett, supra at 969 ) and find no extraordinary circumstances wa…
- People v. Hogencamp, 6 A.D.3d 877 (N.Y. App. Div. 3d Dep't 2004).publishedFurthermore, we reject defendant’s assertion that the court, after consideration of defendant’s extensive criminal history and conduct while incarcerated, abused its discretion in imposing the maximum sentence (see People v Torra, 309 AD2d…
- People v. Seeber, 4 A.D.3d 620 (N.Y. App. Div. 3d Dep't 2004).publishedNonetheless, in view of the brutal nature of this crime, we decline to modify her sentence in the interest of justice (see People v Jones, 283 AD2d 665, 669 [2001], lv denied 96 NY2d 903 [2001]; People v Dolphy, 257 AD2d 681, 685 [1999], l…
- People v. Washington, 4 A.D.3d 546 (N.Y. App. Div. 3d Dep't 2004).publishedAs the record reveals no abuse of discretion or extraordinary circumstances warranting its reduction, no reason exists for us to modify it (see People v Benedict, 274 AD2d 750, 751 [2000]; People v Dolphy, 257 AD2d 681, 685 [1999], lv deni…
- People v. Vanhoesen, 3 A.D.3d 787 (N.Y. App. Div. 3d Dep't 2004).publishedUnder these circumstances, we find no extraordinary circumstances or abuse of discretion warranting a reduction of the sentence in the interest of justice (see CPL 470.15 [6] [b]; People v Dolphy, 257 AD2d 681, 685 [1999], lv denied 93 NY2…
- People v. Arnold, 2 A.D.3d 975 (N.Y. App. Div. 3d Dep't 2003).publishedNor do we see any extraordinary circumstances warranting its modification in the interest of justice (see People v Baker, 293 AD2d 820, 821-822 [2002], lv denied 98 NY2d 708 [2002]; People v Dolphy, 257 AD2d 681, 685 [1999], lv denied 93 N…
- People v. Thomas, 2 A.D.3d 982 (N.Y. App. Div. 3d Dep't 2003).publishedSeeing no abuse of discretion nor extraordinary circumstances warranting a modification of defendant’s sentence in the interest of justice (see People v Varno, 297 AD2d 873, 875 [2002], lv denied 99 NY2d 565 [2002]; People v Charles, 258 A…
- People v. Stephens, 2 A.D.3d 888 (N.Y. App. Div. 3d Dep't 2003).publishedFinally, we are not persuaded by defendant’s claims that because he is an “educated family man” and the victim was not seriously injured or actually touched on the skin, imposition of the maximum authorized sentence for the sexual abuse co…
- People v. Wright, 1 A.D.2d 707 (N.Y. App. Div. 3d Dep't 2003).publishedFinally, in light of the seriousness of this crime and the danger such conduct poses to the community, we cannot say that County Court’s imposition of the maximum allowable sentence for each conviction was an abuse of discretion and we see…
- People v. Torra, 309 A.D.2d 1074 (N.Y. App. Div. 3d Dep't 2003).publishedIn view of defendant’s extensive criminal history, these sentences were not an abuse of discretion, and we see no extraordinary circumstances warranting their modification in the interest of justice (see People v Spencer, 272 AD2d 682, 685…
- People v. Dickerson, 309 A.D.2d 966 (N.Y. App. Div. 3d Dep't 2003).publishedFinally, defendant received concurrent sentences for both convictions consistent with the plea bargain and, on this record, we see no extraordinary circumstances warranting a modification in the interest of justice (see People v Brodus, 30…
- People v. Williams, 306 A.D.2d 763 (N.Y. App. Div. 3d Dep't 2003).publishedAs to the sentence imposed, we note that it was permitted by the applicable statute and find no abuse of discretion or extraordinary circumstance which would warrant our modification of the sentence in the interest of justice (see People v…
- People v. Echandy, 306 A.D.2d 693 (N.Y. App. Div. 3d Dep't 2003).publishedIn any event, defendant was sentenced in accordance with a plea agreement and, on this record, we see no extraordinary circumstances warranting a modification of defendant’s sentence in the interest of justice (see People v Camp, supra; Pe…
- People v. Parker, 305 A.D.2d 871 (N.Y. App. Div. 3d Dep't 2003).publishedNevertheless, defendant was found competent to stand trial (see People v Rodney, 245 AD2d 394 , 395 [1997], lv denied 91 NY2d 929 [1998]) and, in light of his extensive criminal history and the nature of the subject crimes, we see no abuse…
- People v. Anderson, 304 A.D.2d 975 (N.Y. App. Div. 3d Dep't 2003).publishedFinally, defendant’s claim that his sentence is harsh and excessive was also encompassed by his waiver of the right to appeal (see People v Hidalgo, 91 NY2d 733, 737 [1998]; People v Fulford, supra) and we see no extraordinary circumstance…
- People v. Horsey, 304 A.D.2d 852 (N.Y. App. Div. 3d Dep't 2003).publishedFinally, in view of defendant’s extensive criminal history and knowing participation in this violent crime of greed, we find no extraordinary circumstances or abuse of discretion warranting reduction of the sentence in the interest of just…
- People v. Barkley, 289 A.D.2d 880 (N.Y. App. Div. 3d Dep't 2001).publishedMoreover, our review of the record reveals no extraordinary circumstances to warrant a reduction of the sentence imposed in the interest of justice (see, People v Dolphy, 257 AD2d 681, 685, lv denied 93 NY2d 872 ).
At page 683 Analyzing burden of proof in peremptory strike challenges4 citing cases“We reject defendant’s bald contention that the explanation was pretextual in nature and, therefore, we will not disturb County Court’s determination.”
- People v. Murphy, 79 A.D.3d 1451 (N.Y. App. Div. 3d Dep't 2010).publishedIn particular, we note that defense counsel had stricken every other African-American juror up to that point, and the court had previously put counsel “on notice” and warned him that his proffered explanation as to one of those jurors was…
- People v. Skervin, 13 A.D.3d 661 (N.Y. App. Div. 3d Dep't 2004).publishedMoreover, the prosecutor’s explanation, which does not have to be persuasive or plausible (see People v Starks, supra at 622), but need only be “facially permissible” (People v Smocum, supra at 422 ), was race neutral and, therefore, overc…
- People v. Henry, 2 A.D.3d 1060 (N.Y. App. Div. 3d Dep't 2003).publishedAcknowledging that issues concerning credibility and the weight to be accorded to evidence are matters left to the jury (see People v Dolphy, 257 AD2d 681, 683 [1999], lv denied 93 NY2d 872 [1999]), we find, upon the exercise of our factua…
- People v. Tunstall, 278 A.D.2d 585 (N.Y. App. Div. 3d Dep't 2000).publishedMoreover, upon viewing all of the evidence in a “neutral light,” and weighing “the relative probative value of the inferences that may be drawn from the testimony” (People v Jefferson, 248 AD2d 815, 817 , lv denied 92 NY2d 926 ; see, Peopl…
Other citing cases
- Dolphy v. Mantello, No. 03-2738-pr(L) (2d Cir. Jan. 9, 2009).published
- People v. Barber, 280 A.D.2d 691 (N.Y. App. Div. 3d Dep't 2001).published
v.
Seth D. Dolphy
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered October 9, 1997, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree, criminal possession of a con[*682]trolled substance in the fourth degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and attempted assault in the first degree.
Following a jury trial, defendant was convicted as charged and was sentenced as a second violent felony offender to concurrent terms of imprisonment of 6 to 12 years for his conviction of criminal possession of a controlled substance in the third degree and 4 to 8 years for his conviction of criminal possession of a controlled substance in the fourth degree. Defendant was also sentenced to a term of imprisonment of 10 years for his conviction of criminal possession of a weapon in the second degree, 10 years for his conviction of attempted assault in the first degree and 5 years for his conviction of criminal possession of a weapon in the third degree. These latter three sentences are to run concurrent to each other, but consecutive to defendant’s sentences on the drug convictions. Defendant appeals.
We affirm. Initially, we reject defendant’s contention that the prosecutor’s use of a peremptory challenge to exclude the only African American on the jury panel violated his equal protection rights under the 14th Amendment of the US Constitution (see, Batson v Kentucky, 476 US 79). Defendant’s counsel challenged the prosecutor’s strike of the juror in question based on the fact that defendant was an African American and that the juror was the only African-American person on the jury panel. County Court, noting that the juror was the only African-American juror and that the juror properly answered voir dire questions, held that defendant had made a sufficient prima facie showing to shift the burden to the prosecutor to put forward a race neutral explanation for the strike (see, Batson v Kentucky, supra). The prosecutor, in response to the Batson challenge, stated that he struck the juror based on the fact that she was overweight. As a matter of practice, the prosecutor stated that, based on his own personal jury criteria, he omitted obese people based on his past experience that “heavyset people tend to be very sympathetic toward any defendant”. County Court found the explanation to be race neutral and denied defendant’s request for a mistrial.
In Batson v Kentucky (supra), the Supreme Court determined that the Equal Protection Clause of the 14th Amendment prohibits peremptory challenges on the basis of race (see, People v Payne, 88 NY2d 172, 181). “When one side in a criminal case claims that the other side’s exercise of peremptory strikes is infected by purposeful discrimination, the trial court must engage in a three-step process. Initially, the party contesting[*683] the peremptory challenges * * * must satisfy the court with a prima facie showing that the peremptory strikes related to the race of the jurors sought to be removed * * *. If that threshold showing is met, the lawyer seeking the excusáis * * * has the burden of coming forward ‘to overcome the inference of purposeful discrimination’ * * * To do so, that party must voice a ‘race-neutral explanation for striking the jurors in question’ * * * When the proffered explanations appear facially race-neutral, the trial court must then determine ‘whether the opponent of the strike * * * has proved purposeful racial discrimination’ * * * The focus at this third step is whether the ‘race-neutral’ explanation is a mere pretext for racial discrimination * * * The ultimate burden of persuasion at the third stage rests unalterably on the party objecting to the peremptory strikes” (id., at 181 [citations omitted]). Moreover, the trial court’s factual assessment of the prosecutor’s motivation in making the peremptory challenge is entitled to great deference on appeal since it will usually turn on evaluations of the prosecutor’s credibility (see, Batson v Kentucky, supra, at 98, n 21; see also, Hernandez v New York, 500 US 352; People v Hernandez, 75 NY2d 350, 356; People v Gregory ZZ., 134 AD2d 814, 816, lv denied 71 NY2d 905). Furthermore, “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike” (Purkett v Elem, 514 US 765, 768). In our view, the prosecutor met his burden by coming forward with a racially neutral explanation which was given credence by County Court. We reject defendant’s bald contention that the explanation was pretextual in nature and, therefore, we will not disturb County Court’s determination.
Next, we reject defendant’s contention that the verdict was not supported by legally sufficient evidence and was against the weight of the evidence. The standard of review in determining whether the evidence adduced by the prosecution at trial is legally sufficient is, looking at the evidence in the light most favorable to the prosecution (see, People v Harper, 75 NY2d 313, 316; People v Contes, 60 NY2d 620, 621), “whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v Bleakley, 69 NY2d 490, 495 [citation omitted]; see, People v Cabey, 85 NY2d 417, 420). When analyzing whether the verdict was against the weight of the evidence, this Court views the evidence in a “neutral light” and makes its “own independent determination of the relative probative value of the inferences[*684] that may be drawn from the testimony” (People v Jefferson, 248 AD2d 815, 817, lv denied 92 NY2d 926).
Here, the testimony at trial advanced that on February 26, 1997 defendant had an altercation on a street corner in the City of Binghamton, Broome County, with Steven Wade, a drug dealer, regarding drug-selling territory. Wade had engaged in selling crack cocaine out of an apartment at the location, and had warned defendant to leave the area earlier that same day. When Wade approached defendant again that day, defendant pulled out a pistol and began firing in the direction of Wade, who ran away and was not struck by any bullets.
Subsequently, defendant was pursued by Police Officer William Mooney. Mooney testified that at one point during his chase, he saw defendant “drop to his knees * * * and [begin] pawing at the ground”. He stated that he observed defendant reach into his coat pocket and place something on the ground arid then continue to flee. After apprehending defendant, Mooney returned to the area where he had witnessed defendant digging in the ground. Investigator Michael Buemi testified that he was told by Mooney where defendant had been and that Mooney showed him the general area where he had seen defendant digging. Buemi described how his police dog, trained to detect narcotics, searched the area and was “alerted” to a rock in the area. Upon moving the rock, Buemi stated that he found a number of small bags and a large bag containing 29 small bags of what he believed to be cocaine. A forensic chemist employed by the State Police Crime Laboratory corroborated Buemi’s testimony, stating that the substance recovered contained cocaine and that the combined weight of the drugs in the bags was over one eighth of an ounce.
Wade testified that he knew defendant and that he had taken over a room in a house where defendant had been previously selling drugs. Wade further testified that during an argument over selling drugs on the day in question, defendant pulled out a pistol and started shooting; he stated that as he was running away from defendant, he saw bullets hitting the ground just ahead of him and heard bullets “zipping by” his head. Furthermore, Binghamton Police Officer Arnold Nanni testified that he read defendant his Miranda rights after defendant was apprehended and defendant then admitted that he purchased a gun earlier in the day and fired the gun at Wade.
The record also reveals that defense counsel challenged the credibility of the People’s witnesses during cross-examination. During Buemi’s cross-examination defense counsel raised the hypothesis that, since the area was a high drug-traffic area,[*685] there was a possibility that someone other than defendant could have placed the drugs beneath the rock where they were found. Wade’s credibility was also tested by defense counsel when he highlighted the fact that Wade was a drug dealer and that Wade’s testimony would result in the dismissal of a drug charge against him. Defendant testified on his own behalf and stated that somebody else fired the weapon on the day in question and that he took off running; he also denied that he admitted firing the gun when interviewed by Nanni.
In our view, the testimony of the prosecution’s witnesses, if accepted as true, clearly set forth all of the elements necessary to establish a prima facie case of each of the individual charges, and therefore the evidence was legally sufficient. Furthermore, since the jury could properly assess and resolve the credibility of the witnesses (see, People v Ford, 174 AD2d 853, 854, lv denied 78 NY2d 955), and could have validly believed the testimony of the prosecution’s witnesses over the far different account set forth by defendant, the jury verdict was not against the weight of the evidence. As the jury was “free to reject all of defendant’s testimony or to selectively credit any part that they deemed worthy of belief and reject the rest” (People v Rose [Cousins1, 215 AD2d 875, 876, lv denied 86 NY2d 793, 801), defendant’s own prior admission, when coupled with the evidence presented by the prosecution, amply provided a basis on which the jury could have reached a guilty verdict.
We also reject defendant’s contention that the sentences imposed by County Court were harsh and excessive. Where a sentence is within permissible statutory ranges, it shall not be disturbed unless the sentencing court abused its discretion or extraordinary circumstances exist warranting a modification (see, People v Parson, 209 AD2d 882, 884, lv denied 84 NY2d 1014). Here, County Court cited defendant’s lengthy prior criminal record including a prior felony, criminal possession of a weapon in the third degree, which made defendant eligible for classification as a second violent felony offender. Upon our review of the record we find no reason to disturb County Court’s sentence determination (see, id., at 884; People v Ambrose, 160 AD2d 1097, 1097-1098, lv denied 76 NY2d 784).
We have reviewed defendant’s remaining contentions and find them to be unpreserved for appellate review and/or lacking in merit.
Mikoll, J. P., Crew III, Yesawich Jr. and Graffeo, JJ., concur. Ordered that the judgment is affirmed.