| People v Jones |
| 2013 NY Slip Op 00828 [103 AD3d 1215] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v JetoneJones, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered October 8, 2010. The judgment convicted defendant, upon a jury verdict,of robbery in the first degree and robbery in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Erie County, for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon a jury verdictof robbery in the first degree (Penal Law § 160.15 [3]) and robbery in the seconddegree (§ 160.10 [1]), defendant contends that reversal is required because therecord fails to establish whether Supreme Court provided a meaningful response to thejury's request for exhibits. Defendant did not preserve that contention for our review and,in any event, there is no evidence in the record that the court did not comply fully withthe jury's request (see People vSnider, 49 AD3d 459, 459 [2008], lv denied 11 NY3d 795 [2008],citing People v Kisoon, 8NY3d 129, 135 [2007]; see generally People v O'Rama, 78 NY2d 270, 276[1991]). Defendant's suggestion to the contrary is based solely on speculation.
Defendant further contends that the conviction is not supported by legally sufficientevidence. We reject that contention (see generally People v Bleakley, 69 NY2d490, 495 [1987]). The evidence established that the victim, who had known defendantfor several years, observed him seated with another man in a truck at a gas station,drinking from a Grey Goose vodka bottle that was partially wrapped in a paper bag. Aftera short conversation between defendant and the victim, defendant exited the truck andstruck the victim in the head with a hard object. A struggle ensued and, while the victimwas on the ground, defendant or his companion stole cash, a cell phone and a pack ofNewport cigarettes from the victim's pockets. Although the victim did not see the objectthat defendant used to strike him, defendant believed that it was the vodka bottle. Afterdefendant drove away, the victim called 911 and reported the crime.
Within 20 minutes, the police observed defendant and his codefendant in a vehiclematching the description of the robbers' vehicle provided by the victim. The vehicle wasparked on a street approximately a quarter of a mile from the crime scene. Uponinvestigation, the police learned that the victim's cell phone was in the vehicle, alongwith a pack of Newport [*2]cigarettes and a bottle ofGrey Goose vodka. Another Grey Goose bottle was found on the grass next to thevehicle. The victim then identified defendant in a prompt showup procedure. Whiledefendant was in a holding room at the police station following his arrest, a policeinvestigator heard defendant saying to his codefendant, "Man, I should have thrown thephone out," or words to that effect.
The above evidence, viewed in the light most favorable to the People (see Peoplev Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction.Although the victim did not see defendant strike him with a Grey Goose bottle, whichconstitutes a dangerous instrument under these circumstances (see People v Joseph, 23 AD3d174, 175 [2005], lv denied 6 NY3d 777 [2006]; People v Soumik,244 AD2d 584, 584 [1997], lv denied 91 NY2d 897 [1998]), the evidence islegally sufficient to establish that defendant used the Grey Goose vodka bottle to attackdefendant from behind in order to steal his property (see People v Jacobs, 188AD2d 897, 898 [1992], lv denied 81 NY2d 887 [1993]; People v Carey,180 AD2d 431, 432 [1992], lv denied 79 NY2d 998 [1992]; cf. People vMcBride, 203 AD2d 85, 86 [1994], lv denied 83 NY2d 912 [1994]). Further,viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d 495). Although a different verdictwould not have been unreasonable, upon independently "weigh[ing] the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony," we conclude that the jury did not failto give the evidence the weight it should be accorded (People v Rayam, 94 NY2d557, 560 [2000] [internal quotation marks omitted]).
Defendant further contends that he was deprived of a fair trial by various erroneousevidentiary rulings made by the court, some of which were of constitutional dimension.Defendant failed to preserve for our review his contentions with respect to the allegederrors (see CPL 470.05 [2]). In any event, even assuming, arguendo, that thecourt erred in one or more of its evidentiary rulings, we conclude that "there isoverwhelming proof of the defendant's guilt and no reasonable possibility that theerror[s] might have contributed to the defendant's conviction" (People v Khan,200 AD2d 129, 139-140 [1994], lv denied 84 NY2d 937 [1994]; seegenerally People v Crimmins, 36 NY2d 230, 237 [1975]). We reject defendant'sfurther contention that he was denied effective assistance of counsel (see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). We have reviewed defendant'scontention concerning venue and conclude that it does not require reversal ormodification of the judgment.
We agree with defendant, however, that the court erred in failing to rule on thoseparts of his pretrial motion seeking inspection of the grand jury minutes and seekingdismissal of the indictment on the ground that the integrity of the grand jury proceedingswas impaired (see People vSpratley, 96 AD3d 1420, 1421 [2012]). The record does not reflect that thecourt ever ruled on defendant's motion, and a failure to rule on a motion cannot bedeemed a denial thereof (see id.; see also People v Concepcion, 17 NY3d 192, 197-198[2011]). We therefore hold the case, reserve decision and remit the matter to SupremeCourt to decide those parts of defendant's motion. Present—Smith, J.P., Peradotto,Lindley, Sconiers and Valentino, JJ.