United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE
Lawrence Brown was charged in a four count indictment with
having committed two Hobbs Act Robberies, in violation of 18
USC § 1951, and with brandishing a firearm during crimes
of violence, in violation of 18 USC § 924(c). Defendant
was accused of committing two separate robberies; one on
November 14, 2013 at a Rite Aid Pharmacy ("Rite Aid
Robbery") and one on April 4, 2014 at a Shop Rite
Supermarket ("Shop Rite Robbery"). In May 2016,
Defendant moved to suppress, inter alia,
identification evidence ("Defendant's Suppression
Motion"). By Opinion and Order dated September 19, 2016,
this Court denied that portion of Defendant's
Suppression' Motion which sought to suppress the photo
array identification evidence. Following a jury trial,
Defendant was convicted of all four counts of the indictment.
before the Court is Defendant's post-trial motion
pursuant to Rule 29 and Rule 33 of the Federal Rules of
Criminal Procedure, for an Order setting aside the jury
verdict and entering an order of acquittal, or in the
alternative, granting a new trial ("Defendant's
Motion"). For the following reasons, Defendant's
Motion is DENIED in its entirety.
provides that after the close of the Government's
evidence in a criminal trial, on the defendant's motion,
the Court “must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. § 29(a). The rule
permits a defendant to move for a judgment of acquittal
within fourteen (14) days of a guilty verdict or the
Court's discharge of the jury, whichever is
later. Fed. R. Crim. P. § 29(c)(1). On such
a motion, the Court must enter a judgment of acquittal on
grounds of insufficient evidence if it concludes that no
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. Fed. R. Crim. P. 29(a), (c);
United States v. Jackson, 335 F.3d 170, 180 (2d Cir.
2003) (citing United States v. Reyes, 302 F.3d 48,
52 (2d Cir.2002)). This standard imposes a heavy burden on
the defendant, as a conviction must be affirmed if
“any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319
assessing the sufficiency of the evidence, the Court must
view the evidence in the light most favorable to the
government and draw all reasonable inferences in its favor.
United States v. Puzzo, 928 F.2d 1356, 1361 (2d
Cir.1991). The Court must consider direct evidence as well as
any circumstantial evidence proffered. See United States
v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995) (citing
United States v. Libera, 989 F.2d 596, 601 (2d Cir.
1993), cert. denied, 510 U.S. 976 (1993)). In so
doing, the Court must view the evidence in its totality, not
in isolation, and note that the government is not required to
negate every possible theory of innocence. See United
States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir.1993).
Most importantly, the Court must be ever mindful not to
“usurp[e] the role of the jury, ” United
States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004)
(citing Jackson, 335 F.3d at 180), nor may it
“substitute its own determination of . . . the weight
of the evidence and the reasonable inferences to be drawn for
that of the jury.” Id. at 718 (citing
United States v. Guadagna, 183 F.3d 122, 129 (2d
Cir. 1999)) (internal quotation marks omitted).
Rule 33 motion, “the court may vacate any judgment and
order a new trial if the interest of justice so
requires.” Fed. R. Crim. P. § 33. Rule 33 motions
are typically granted “only in extraordinary
circumstances.” United States v. Moore, 54
F.3d 92, 99 (2d Cir. 1995); see also United States v.
Torres, 128 F.3d 38, 48 (2d Cir.1997); United States
v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009). The Rule
33 time limitations are jurisdictional; unless a motion is
filed in a timely fashion, a court lacks the power to
consider it. United States v. Spencer, 83 Fed.Appx.
391, 393 (2d Cir. 2003) (citing United States v.
Dukes, 727 F.2d 34, 38 (2d Cir. 1984)). While Rule 33
“confers broad discretion upon a trial court, ”
the granting of the motion must be predicated upon the
Court's need to avoid a perceived miscarriage of justice.
United States v. Sanchez, 969 F.2d 1409, 1413 (2d
Cir. 1992). It is axiomatic that trial courts “must
defer to the jury's resolution of the weight of the
evidence and the credibility of the witnesses.”
United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.
1982), cert. denied, 459 U.S. 1174 (1983). Only
where exceptional circumstances exist may the trial judge
intrude upon the jury function of credibility assessment.
See United States v. Kuzniar, 881 F.2d 466, 470 (7th
Cir. 1989). For example, where testimony is deemed
“patently incredible or defies physical realities,
” the Court may reject such evidence despite the
jury's evaluation. See e.g., United States
v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting
Sanchez, 969 F.2d at 1414); Holland v. Allied
Structural Steel Co., 539 F.2d 476, 483 (5th Cir. 1976),
cert. denied, 429 U.S. 1105 (1977); Zollman v.
Symington Wayne Corp., 438 F.2d 28, 31-32 (7th Cir.
1971), cert. denied, 404 U.S. 827 (1971). The
“ultimate test” for the Court's consideration
is “whether letting a guilty verdict stand would be a
manifest injustice [such that] . . . . an innocent person may
have been convicted.” Ferguson, 246 F.3d at
133 (citation and quotation marks omitted); see also
United States v. Aponte-Vega, 230 F.3d 522, 525 (2d Cir.
2000) (per curiam).
viewing the evidence in the light most favorable to the
Government, and taking into consideration the totality of the
evidence, it is this Court's determination that the
Government has proffered sufficient evidence to establish
each of the requisite elements of the crimes charged, such
that a rational trier of fact would or could determine beyond
a reasonable doubt that the Defendant committed both the Rite
Aid Robbery and the Shop Rite Robbery.
does not challenge the sufficiency of the evidence concerning
the factual elements of the crimes charged. In fact,
Defendant concedes “that the Government established the
[necessary factual elements of the] robberies beyond a
reasonable doubt.” (Defendant's Brief in Support of
Motion Pursuant to Rules 29(a) and 33, ECF No. 59,
“Def. Br.” at 2.) Defendant's sole contention
is that the Government failed to establish beyond a
reasonable doubt the identity of the perpetrator.
(Id.) In other words, Defendant asserts that the
Government failed to establish beyond a reasonable doubt that
it was he who committed both robberies. This Court disagrees.
contends that there was insufficient evidence placing him at
the site of the Rite Aid Robbery. (Def. Br. at 2.) Such
contention lacks merit. At trial, Stephanie Solis, a cashier
of the Rite Aid Pharmacy located in New Windsor, New York,
testified that on November 14, 2013, a tall male dressed as a
Pepsi delivery employee (“perpetrator”) entered
the location and asked to speak to the store manager. After
directing the perpetrator to Kerensa Howard
(“Howard”), the store manager, Solis observed the
perpetrator and the manager briefly talk and then enter the
manager's office. A short time thereafter, Solis observed
the perpetrator exit the manager's office carrying a blue
Aldi bag with a tree on it (later determined to contain
money) and then ...