People v Henry Cassie

People v Cassie 2004 NY Slip Op 09218 [13 AD3d 142] December 14, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

The People of the State of New York, Respondent,
v
Henry Cassie, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered June 21, 2001, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury's determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). The totality of defendant's statements, coupled with the other evidence introduced by the People, clearly established that defendant shared his companions' intent to rob the victim, and that defendant fatally stabbed the victim in furtherance of the robbery (see People v Allah, 71 NY2d 830 [1988]). The jury properly discredited defendant's testimony and the exculpatory portions of his statements.

Defendant's argument that the court should have instructed the jury on the elements of robbery, which was the underlying felony for the felony murder count of which defendant was convicted, is an argument requiring preservation (see generally People v Gray, 86 NY2d 10 [1995]), and we decline to review this unpreserved argument in the interest of justice. Were we to review this claim, we would find, based on the issues presented and evidence introduced at trial, that defendant could not have been prejudiced by the absence of this instruction (see People v Tucker, 278 AD2d 38 [2000], lv denied 96 NY2d 788 [2001]). Furthermore, on this record, defendant received effective assistance of counsel (see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]). Concur—Buckley, P.J., Andrias, Sullivan, Ellerin and Williams, JJ.