| People v Blume |
| 2012 NY Slip Op 00861 [92 AD3d 1025] |
| February 9, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DonaldBlume, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered May 5, 2010, upon a verdict convicting defendant of the crimes of robbery in thesecond degree (two counts) and criminal possession of a weapon in the second degree.
On the evening of April 26, 2009, defendant and codefendants Frederick Pagan and LynnThomas, together with Toni DiLauro, Angelo Rivera and Ryan Ward, gathered at an apartment inthe Village of Liberty, Sullivan County. According to DiLauro and Thomas, who are sisters, theconversation soon turned to how the group, some of whom already had partaken of drugs andalcohol earlier that day, might acquire additional quantities of crack cocaine. After Thomas nixedan initial plan to rob a local drug dealer, she contacted a cab driver she knew (hereinafter thevictim) and asked him to meet her in a particular parking lot with change for a $100 bill.According to DiLauro, the revised plan was for Thomas—a prostitute—to have sexwith the victim in order to obtain the funds needed to purchase additional drugs.
The group piled into Rivera's vehicle and proceeded to the appointed location. While enroute, DiLauro testified, defendant questioned the need for Thomas to have sex with the victim,[*2]stating, "[W]hy does she have to do this, we could just robhim."[FN1]Upon arrival, defendant, Pagan, Thomas and Ward exited the vehicle and walked to theagreed-upon meeting spot, with Ward stopping along the way at his father's apartment to retrievethree hooded sweatshirts. Rivera and DiLauro remained with the vehicle. Thomas testified thatupon rendezvousing with the victim, she and Pagan climbed into the back seat of the cab. As thevictim turned to speak with the duo, defendant appeared and opened the driver-side door, and heand Pagan began punching the victim. As the struggle continued, the victim pulled out his loadedhandgun and pointed it at defendant.[FN2]The gun failed to fire, however, and defendant eventually wrestled the gun away from the victim.In the interim, Ward entered the cab through the passenger-side door and joined the fray.Ultimately, the victim was pulled from the cab and pistol-whipped, after which defendant, Pagan,Thomas and Ward fled with the victim's wallet, cash and gun.[FN3]
Upon returning to Rivera's vehicle, the group—now minus Rivera, who left andwalked to a friend's house—departed the scene. According to DiLauro and Thomas,defendant was waving the victim's gun around the car and bragging about his role in theattack.[FN4]After stopping briefly to dispose of the hooded sweatshirts in a wooded area, the groupproceeded to a local gas station, where defendant was captured on video surveillance purchasinggasoline.
Defendant, Pagan and Thomas subsequently were indicted and charged with robbery in thesecond degree (two counts) and criminal possession of a weapon in the second degree. Thomaspleaded guilty and testified against defendant and Pagan, who were tried jointly—albeitwith separate juries. Defendant was convicted as charged and thereafter sentenced to anaggregate prison term of 22 years followed by a period of postrelease supervision.[FN5]Defendant now appeals.
We affirm. The various arguments raised by defendant are either unpreserved for our reviewor lacking in merit. As to the asserted Wade violation, County Court indicated that itwould not be conducting a Wade hearing with respect to defendant because, as notedpreviously, the victim was unable to identify defendant as one of his attackers and the People didnot intend to pursue any such identification testimony at trial. Defendant voiced no objection toCounty Court's ruling and, therefore, his present argument is unpreserved for our review(see CPL 470.05 [2]; People vBelle, 74 AD3d 1477, 1480 [2010], lv denied 15 NY3d 918 [2010]). Moreover,we [*3]discern no circumstances that would warrant the exerciseof our interest of justice jurisdiction in this regard.
With respect to the corroboration issue, the crux of defendant's argument on this point is thatCounty Court erred in failing to charge the jury that DiLauro and Rivera were accomplices as amatter of law. In response to a request made by Pagan's counsel, County Court charged the jurythat Thomas was an accomplice as a matter of law and submitted for the jury's considerationwhether DiLauro and Rivera were accomplices as a matter of fact. A review of the transcriptreveals that defendant neither objected to the proposed charge, requested an alternative charge,filed an exception to the charge ultimately given nor made an additional request to charge.Accordingly, defendant failed to preserve this issue for our review (see People v Wright, 81 AD3d1161, 1162 [2011], lv denied 17 NY3d 803 [2011]; People v Kennedy, 78 AD3d 1233,1236 [2010], lv denied 16 NY3d 896 [2011]; People v Tabb, 12 AD3d 951, 953 [2004], lv denied 4NY3d 768 [2005]; People v Hill, 236 AD2d 799, 800 [1997], lv denied 89 NY2d1036 [1997]; People v Woodham, 158 AD2d 494, 495 [1990]). To the extent thatdefendant's submissions may be read as challenging the legal sufficiency of the evidencesupporting the verdict, we need note only that defendant did not move to dismiss the indictmentuntil after the jury rendered its verdict, thereby failing to preserve this issue for our review (see People v Doyle, 48 AD3d 961,962 [2008], lv denied 10 NY3d 862 [2008]; People v Gathers, 47 AD3d 959, 959 [2008], lv denied 10NY3d 863 [2008]; compare People vLee, 80 AD3d 877, 878 n 1 [2011] [specific motion to dismiss made at the close of thePeople's case and renewed after the defendant presented evidence], lv denied 16 NY3d833 [2011]).[FN6]Similarly, defendant's claim that the verdict was against the weight of the evidence was raised forthe first time in his reply brief and, as such, is not properly before us (see People vDavenport, 58 AD3d 892, 894 [2009], lv denied 12 NY3d 782 [2009]).
Finally, given the violent nature of the attack upon the victim, we reject defendant's assertionthat the sentence imposed is harsh or excessive. Moreover, we note that defendant's reliance uponPenal Law § 70.25 (3) is misplaced, as that provision deals with alternative definitesentences imposed under Penal Law § 70.00 (4) for class D and E felonies, not—asis the case here—determinate sentences imposed under Penal Law § 70.02 (b) forclass C violent felonies. Defendant's remaining contentions, including his claimed Bradyviolation, have been examined and found to be lacking in merit.
Peters, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Thomas disputes this account,contending instead that the plan—from the outset—was to rob the victim.
Footnote 2: The victim testified that theweapon in question was a .357 Magnum revolver, which was loaded with .38 caliber bullets.
Footnote 3: Of the three actual attackers(defendant, Pagan and Ward), the victim was able to identify only Pagan. The victim also wasable to identify Thomas from prior encounters with her.
Footnote 4: DiLauro testified that defendantremoved the shells from the gun, and authorities later would recover a single .38 caliber shellfrom the floor of Rivera's vehicle.
Footnote 5: Pagan also was convicted ascharged and has filed a notice of appeal.
Footnote 6: Although defense counseladmittedly "reserve[d]" on the motion for a trial order of dismissal with County Court's blessing(and arguably at its behest), neither the parties nor the trial court may fashion or acquiesce to aprocedure that effectively contravenes the preservation requirement or otherwise undermines therationale therefor (see generally People v Gray, 86 NY2d 10, 20-21 [1995]). In any event,if defendant's various corroboration claims were properly before us, we would find them to belacking in merit.