                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     106095
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAMES E. LAWRENCE, Also Known
   as BLACK,
                    Appellant.
________________________________


Calendar Date:   May 24, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

                             __________


     Mitch Kessler, Cohoes, for appellant.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                             __________


Mulvey, J.

      Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered May 24, 2013, upon a verdict convicting
defendant of the crimes of burglary in the first degree (two
counts), robbery in the first degree and robbery in the second
degree (two counts).

      In June 2012, defendant was charged in a five-count
indictment with burglary in the first degree (two counts),
robbery in the first degree and robbery in the second degree       (two
counts) after he and three other individuals – Shaun Green,
Nakeya Rodriguez and Antoine Daniels – allegedly entered the       home
of 86-year-old Fred Freije (hereinafter the victim) and beat       and
robbed him. Following a jury trial, defendant was convicted        as
                              -2-                106095

charged and was thereafter sentenced, as a second felony
offender, to concurrent prison terms of 15 years with five years
of postrelease supervision. Defendant now appeals, and we
affirm.

      Defendant initially argues that the jury verdict was
against the weight of the evidence. Specifically, defendant
contends that the only direct evidence implicating him in the
crimes came from the uncorroborated accomplice testimony of
Rodriguez and Daniels, that the testimony of Andrea Lorenzo only
established defendant's consciousness of guilt and that there was
no proof that a black face mask recovered from among the stolen
items had been worn by him during the robbery.1 In determining
whether a conviction is against the weight of the evidence, we
look first at all the credible evidence and, if a different
finding would not have been unreasonable, then, "like the trier
of fact below, [we] weigh the relative probative force of
conflicting testimony and the relative strength of conflicting
inferences that may be drawn from the testimony" (People v
Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and
citation omitted]; see People v Hebert, 68 AD3d 1530, 1531
[2009], lv denied 14 NY3d 841 [2010]). Based on the weight of
the credible evidence, we then decide if the jury was justified
in finding the defendant guilty beyond a reasonable doubt (see
People v Danielson, 9 NY3d 342, 348 [2007]). In such analysis,
we must "determine whether all the elements of the charged crimes
were proven beyond a reasonable doubt" (People v Reeves, 124 AD3d
1068, 1068 [2015], lv denied 25 NY3d 1076 [2015]; see People v
Gibson, 118 AD3d 1157, 1159 [2014], lv denied 23 NY3d 1062
[2014]; People v Hebert, 68 AD3d at 1531). Finally, we evaluate
the evidence in a neutral light and "accord deference to the
jury's resolution of the credibility issues involved, given its
opportunity to view the witnesses and observe their demeanor
throughout this process" (People v Shoemaker, 119 AD3d 1073,
1074-1075 [2014], lv denied 25 NY3d 992 [2015]; see People v
Phelan, 82 AD3d 1279, 1282 [2011], lv denied 17 NY3d 799 [2011]).


    1
        Rodriguez pleaded guilty to burglary in the third degree
and Daniels pleaded guilty to burglary in the second degree.
Lorenzo was never charged with a crime related to this incident.
                              -3-                106095

      As relevant here, "[a] person is guilty of burglary in the
first degree when he [or she] knowingly enters or remains
unlawfully in a dwelling with intent to commit a crime therein"
and when "he [or she] or another participant in the crime
. . . [c]auses physical injury to any person who is not a
participant in the crime" or "[u]ses or threatens the immediate
use of a dangerous instrument" (Penal Law § 140.30 [2], [3]).
Further, "[a] person is guilty of robbery in the first degree
when he [or she] forcibly steals property and when, in the course
of the commission of the crime . . ., he [or she] or another
participant in the crime . . . [u]ses or threatens the immediate
use of a dangerous instrument" (Penal Law § 160.15 [3]).
Pursuant to Penal Law § 160.10 (2) (a), "[a] person is guilty of
robbery in the second degree when he [or she] forcibly steals
property and when[,] . . . [i]n the course of the commission of
the crime or of immediate flight therefrom, he [or she] or
another participant in the crime . . . [c]auses physical injury
to any person who is not a participant in the crime." To prove
that an individual is guilty of robbery in the second degree
pursuant to Penal Law § 160.10 (1), the People must establish
that "he [or she] forcibly steals property and . . . [h]e [or
she] is aided by another person actually present." "A person
forcibly steals property when he or she uses or threatens the
immediate use of physical force upon another person for the
purpose of . . . compelling the owner of such property . . . to
deliver up the property" (People v Myrick, 135 AD3d 1069, 1070
[2016] [internal quotation marks and citation omitted]; see
People v Gordon, 23 NY3d 643, 649-650 [2014]; People v Griffin,
122 AD3d 1068, 1069 [2014], lv denied 25 NY3d 1164 [2015]).

      At trial, Rodriguez testified that, on June 14, 2012, she,
along with Green, Daniels and defendant, went to the victim's
home to rob him. According to Rodriguez, it was Lorenzo's idea
to rob the victim, and the scheme was discussed with the other
participants at Lorenzo's home earlier that day. Rodriguez
testified that, at approximately 11:00 p.m., she, Green, Daniels
and defendant left Lorenzo's home and headed to the victim's
home, where Rodriguez knocked at the victim's back door and asked
him if she could use his phone and then his bathroom. When the
victim opened his door, Green forced his way into the home, with
Rodriguez, Daniels and defendant following. While Rodriguez was
                              -4-                106095

in the victim's home, she observed Green hitting the victim with
a BB gun and with his hand. Ultimately, the safe in the victim's
home was opened and its contents removed. The perpetrators left
the victim's home with bags of the victim's property, some of
which contained coins from the victim's coin collection.
According to Rodriguez, the group then returned to Lorenzo's
home, where, in a second floor bathroom, Rodriguez, Green,
Daniels and defendant split the stolen property. Thereafter,
Green and Daniels left and Rodriguez and defendant stayed at
Lorenzo's house overnight. The next morning, Rodriguez called
Kelli Lord, her cousin who resides across the street from
Lorenzo, and asked her to hold some of the stolen property.
Rodriguez also testified that when the police arrived at
Lorenzo's home that morning, defendant took one of the bags
containing stolen coins and placed it in the basement.

      Lorenzo testified that Green, Rodriguez, Daniels and
defendant were at her home on June 14, 2012. Lorenzo denied
being involved in the burglary plans, testifying that the group
sat outside on her porch and that she was unable to hear what
they were discussing. According to Lorenzo, at approximately
10:30 p.m., Rodriguez, Green, Daniels and defendant left and,
when they returned approximately an hour to an hour and a half
later, they were "in an uproar." Rodriguez had a brown, pleather
bag containing jewelry and other items, and defendant had a book
bag with him. Lorenzo stated that there were also additional
bags of coins and other odds and ends and that, when Green and
Daniels returned, the four went into the bathroom with "a bunch
of stuff." Lorenzo testified that, at some point, Rodriguez
informed her that the group had just robbed someone, that Green
had "pistol-whipped" the victim and that they were scared that
they were in trouble. Thereafter, Green and Daniels left, each
taking a bag, and defendant and Rodriguez spent the night. When
the police arrived at Lorenzo's home the next day, she informed
the police that defendant had taken a bag down to her basement.
Testimony from a crime scene technician with the State Police
noted that evidence confiscated from Lorenzo's home pursuant to a
search warrant included, among other things, a plastic bag from a
basement utility room, which contained numerous coins.

     Daniels testified that he, Rodriguez, Green and defendant
                              -5-                106095

discussed burglarizing a home, and the group went to the victim's
home to carry out their plan. His testimony was substantially
consistent with Rodriguez's testimony regarding the entry into
the victim's home. Daniels testified that while he was in the
victim's home, he could hear the victim being hit repeatedly and
he observed Green holding the victim and striking him with a fake
gun. Green was asking the victim for a combination or a key to a
safe, and defendant was encouraging Green, saying "hit him, hit
him again." The group was in the home for a total of 30 or 45
minutes, and Daniels did not recall anyone wearing anything on
his or her face during the home invasion.

      Lord testified that, the morning after the burglary,
Rodriguez called her and asked her to store some items.
Thereafter, Jodnee Robinson, an acquaintance of Rodriguez and
Lorenzo, brought the bags across the street to Lord's home. Lord
then called the police and turned the bags over to them. Jason
Johnston, a police detective, retrieved the bags from Lord's home
and observed, among other things, a black foam ski mask in one of
the bags, as well as paperwork that contained the victim's name
and collectible coins. Another bag, described by Johnston as a
brown canvas purse, also contained collectible coins. Johnston
testified that the victim informed the police that he was
familiar with one of the perpetrators, later identified as
Rodriguez. Also, the victim, who called 911 after the incident,
stated to the 911 operator that the perpetrators had "things over
their nose, over their chin." Testimony further established that
the victim's coin collection had been taken during the burglary.

      Kristine Robinson, a forensic scientist with the State
Police Forensic Investigation Center, testified that she
performed examinations on various items related to the instant
crime, including buccal swabs from defendant, and performed an
analysis on the black face mask. She testified that defendant's
DNA profile was the major contributor on the mask, both inside
and outside, with one additional donor to the inside and two
additional donors to the outside. Her statistical analysis
determined that the probability of collecting an unrelated
individual comparing defendant's buccal swab with the mask that
matches the major contributor is less than one in three hundred
billion.
                              -6-                106095

      "'While accomplice testimony must be corroborated with
independent evidence, such evidence does not have to be
substantial as it need not establish the elements of the offense;
instead, it is sufficient if it tends to connect the defendant to
the crime, thereby assuring the jury that the accomplice has
offered credible probative evidence'" (People v Burns, 68 AD3d
1246, 1247 [2009], lv denied 14 NY3d 798 [2010], quoting People v
Harrison, 251 AD2d 893, 894 [1998], lv denied 92 NY2d 949 [1998];
see People v Gilbo, 52 AD3d 952, 953 [2008], lv denied 11 NY3d
788 [2008]). Lorenzo's testimony supplied the requisite
corroboration for defendant's participation in the crimes, as it
placed defendant at her home with the other perpetrators before
and after the alleged crimes, and her testimony inferred that
defendant was in possession of and attempted to conceal the
stolen property while at her home (see People v Burns, 68 AD3d at
1247-1248). In addition, defendant's DNA was discovered on the
face mask that was among the stolen items recovered, and,
according to the victim's statements to 911, the perpetrators
were wearing something over their faces during the commission of
the crimes. Viewing the evidence in a neutral light and
according deference to the jury's resolution of credibility
issues, we are satisfied that the verdict is not against the
weight of the evidence (see People v Oliver, 135 AD3d 1188, 1190-
1191 [2016], lv denied 27 NY3d 1003 [2016]; People v Gamble, 135
AD3d 1078, 1078-1080 [2016], lv denied 27 NY3d 997 [2016]; People
v Allen, 132 AD3d 1156, 1157-1158 [2015], lv denied 26 NY3d 1107
[2016]).

      Defendant also contends that he was denied the effective
assistance of counsel – a claim premised upon his counsel's
failure to request an accomplice-in-fact jury instruction for
Lorenzo and to object to the prosecutor's purported
misrepresentations during his summation of the People's DNA
expert's conclusions. "To establish a claim of ineffective
assistance of counsel, defendant 'is required to demonstrate that
he was not provided meaningful representation and that there is
an absence of strategic or other legitimate explanations for
counsel's allegedly deficient conduct'" (People v Ramos, 133 AD3d
904, 909 [2015], lvs denied 26 NY3d 1143, 1149 [2016], quoting
People v McRobbie, 97 AD3d 970, 972 [2012], lv denied 20 NY3d 934
[2012]). Defendant must meet the "high burden" (People v Garcia,
                              -7-                106095

131 AD3d 732, 735 [2015] [internal quotation marks and citation
omitted], lv denied 27 NY3d 997 [2016]; see People v Schulz, 4
NY3d 521, 531 [2005]) of showing that counsel's decision to not
request an accomplice-in-fact jury instruction "could not have
been grounded in a legitimate trial strategy" (People v McGee, 20
NY3d 513, 518 [2013]; see People v Alls, 117 AD3d 1190, 1192
[2014]; People v Izzo, 104 AD3d 964, 967 [2013], lv denied 21
NY3d 1005 [2013]).

      Although defendant would have been entitled to an
accomplice-in-fact jury instruction given Rodriguez's testimony
as to Lorenzo's complicity in planning the home invasion,
defendant has not sufficiently shown that there was no legitimate
trial strategy behind the decision not to request such
instruction – particularly in light of defense counsel's theme
throughout the trial and during summation that Rodriguez, who had
received a favorable plea bargain in exchange for her testimony
against defendant, had falsely implicated defendant in an attempt
to "ensnare other people to take responsibility for her actions"
and, as a result, her testimony was not to be believed.
Also unavailing is defendant's argument that his counsel's
failure to object to the People's mischaracterization of the DNA
evidence denied him meaningful representation. In his summation,
the prosecutor argued that the face mask "was a DNA match," and
that "it was this defendant's DNA – nobody else's DNA . . . in
the blackface mask in the middle of June." Although the latter
statement was technically inaccurate – as the testimony at trial
related that defendant was the major contributor of the DNA
profile on the face mask and that it was admixed with additional
donors – we do not find, under these circumstances, that the
misrepresentation was so egregious or misleading that defense
counsel's failure to object constituted ineffective assistance so
as to deprive defendant of a fair trial (see People v Elwood, 80
AD3d 988, 990 [2011], lv denied 16 NY3d 858 [2011]; People v
Albanese, 38 AD3d 1015, 1018-1019 [2007], lv denied 8 NY3d 981
[2007]).

     Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur.
                        -8-                  106095

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
