Opinion
348 KA 19-00950
04-22-2022
The PEOPLE of the State of New York, Respondent, v. Joshua Q. JOHNSON, Defendant-Appellant.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PAUL B. WATKINS, FAIRPORT, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND NEMOYER, JJ.
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 two counts of assault in the first degree ( Penal Law § 120.10 [1], [4] ), two counts of assault in the second degree (§ 120.05 [2], [6]), four counts of burglary in the first degree (§ 140.30 [1], [2], [3], [4]), and four counts of robbery in the first degree (§ 160.15 [1], [2], [3], [4]). The conviction arises from a home invasion robbery by two perpetrators during which one victim was struck in the head with the end of a shotgun and another victim was shot in the abdomen, rendering him paraplegic. We previously held this case, reserved decision, and remitted the matter to Supreme Court for a ruling on defendant's motion for a trial order of dismissal, on which the court had reserved decision but failed to rule ( People v. Johnson , 192 A.D.3d 1612, 143 N.Y.S.3d 763 [4th Dept. 2021] ). Upon remittal, the court denied the motion, and we now affirm.
Defendant contends that the evidence is legally insufficient to establish his identity as one of the perpetrators and the unlawful entry element of the burglary charges. Initially, defendant's contention that the evidence is legally insufficient to support the conviction is not preserved for our review inasmuch as his general motion for a trial order of dismissal was not " ‘specifically directed’ at" any alleged shortcoming in the evidence now raised on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see People v. McDermott , 200 A.D.3d 1732, 1733, 155 N.Y.S.3d 905 [4th Dept. 2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 36, 184 N.E.3d 857 [2022] ). In any event, that contention lacks merit. "Viewing the evidence in the light most favorable to the People, and giving them the benefit of every reasonable inference" ( People v. Bay , 67 N.Y.2d 787, 788, 501 N.Y.S.2d 19, 492 N.E.2d 127 [1986] ), we conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) that defendant was one of the two perpetrators (see People v. Alston , 174 A.D.3d 1349, 1350, 105 N.Y.S.3d 680 [4th Dept. 2019], lv denied 34 N.Y.3d 978, 113 N.Y.S.3d 663, 137 N.E.3d 33 [2019], reconsideration denied 34 N.Y.3d 1014, 114 N.Y.S.3d 739, 138 N.E.3d 468 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2530, 206 L.Ed.2d 474 [2020] ) and that defendant unlawfully entered the dwelling (see People v. Miller , 32 N.Y.2d 157, 159, 344 N.Y.S.2d 342, 297 N.E.2d 85 [1973] ; People v. Wright , 1 A.D.3d 707, 707-708, 766 N.Y.S.2d 730 [3d Dept. 2003], lv denied 1 N.Y.3d 636, 777 N.Y.S.2d 34, 808 N.E.2d 1293 [2004] ; see generally People v. Mosley , 200 A.D.3d 1664, 1665-1666, 159 N.Y.S.3d 308 [4th Dept. 2021] ).
Additionally, 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 reject defendant's further contention that the verdict is against the weight of the evidence with respect to his identity as one of the perpetrators (see People v. Settles , 192 A.D.3d 1510, 1511-1512, 143 N.Y.S.3d 479 [4th Dept. 2021], lv denied 37 N.Y.3d 960, 147 N.Y.S.3d 545, 170 N.E.3d 419 [2021] ) and his unlawful entry (see People v. Curran , 139 A.D.3d 1085, 1086, 33 N.Y.S.3d 334 [2d Dept. 2016], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 102, 103 N.E.3d 1249 [2018] ; Wright , 1 A.D.3d at 708, 766 N.Y.S.2d 730 ). Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).