People v Lowry

People v Lowry 2022 NY Slip Op 01909 Decided on March 18, 2022 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 18, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
134 KA 18-00656

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

XAVIER A. LOWRY, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DEREK HARNSBERGER OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Monroe County Court (Christopher S. Ciaccio, J.), rendered August 4, 2017. The judgment convicted defendant upon a jury verdict of robbery in the first degree, robbery in the second degree and criminal possession of a weapon in the second degree (two counts).

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, inter alia, robbery in the first degree (Penal Law § 160.15 [4]). Viewing the evidence in light of the elements of the crimes as charged to the jury, we conclude that the verdict is not against the weight of the evidence (see generally People v Danielson, 9 NY3d 342, 348-349 [2007]). Defendant's Batson argument is without merit, particularly given County Court's own observations about the body language and demeanor of the prospective juror (see People v Johnson, 73 AD3d 578, 579 [1st Dept 2010], lv denied 15 NY3d 893 [2010]; People v Carter, 38 AD3d 1256, 1256-1257 [4th Dept 2007], lv denied 8 NY3d 982 [2007]). Finally, defendant's Wade argument "is moot inasmuch as th[e relevant] witness did not identify defendant at trial" (People v Cormack, 170 AD3d 1628, 1629 [4th Dept 2019], lv denied 34 NY3d 979 [2019]; see CPL 470.05 [1]; People v Johnston, 192 AD3d 1516, 1520 [4th Dept 2021], lv denied 37 NY3d 972 [2021]).

Entered: March 18, 2022

Ann Dillon Flynn

Clerk of the Court