People v. Whatts

169 A.D.2d 846, 565 N.Y.S.2d 727, 1991 N.Y. App. Div. LEXIS 976

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1991
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered March 4, 1986, convicting him of robbery in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]). The unequivocal and uncontradicted testimony of four witnesses at the trial that the defendant displayed what appeared to be a firearm during and immediately after the commission of the robbery clearly established beyond a reasonable doubt his guilt of robbery in the first degree as defined in Penal Law § 160.15 (4).

In a supplemental brief filed by the defendant’s substituted retained counsel, the defendant contends that the 38-month delay in the perfection of his appeal by his original appellate counsel resulted in a violation of his due process right to a speedy appeal (see, Barker v Wingo, 407 US 514; see also, People v Cousart, 58 NY2d 62, 68-69). Given the paucity of the record with respect to this claim, however, we conclude that the defendant’s remedy lies in the bringing of a coram nobis proceeding (see, People v Bachert, 69 NY2d 593).

The defendant’s remaining contentions are either unpreserved for appellate review (CPL 470.05 [2]) or without merit. Brown, J. P., Kooper, Eiber and O’Brien, JJ., concur.