| People v Votra |
| 2013 NY Slip Op 01653 [104 AD3d 1160] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Jason R. Votra, Appellant. |
—[*1] Gregory S. Oakes, District Attorney, Oswego (Mark Moody of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.),rendered May 10, 2010. The judgment convicted defendant, upon a jury verdict, ofrobbery in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of two counts of robbery in the second degree (Penal Law § 160.10 [1]).We reject defendant's contention that County Court abused its discretion in denying hismotion for recusal. "Absent a legal disqualification under Judiciary Law § 14, aTrial Judge is the sole arbiter of recusal . . . [and a] court's decision in thisrespect may not be overturned unless it was an abuse of discretion" (People vMoreno, 70 NY2d 403, 405-406 [1987]; see People v Williams, 66 AD3d 1440, 1441-1442 [2009],lv denied 13 NY3d 911 [2009]). Moreover, the court was not obligated to recuseitself on the ground that it had presided over the trial of defendant's codefendant (seePeople v Bennett, 238 AD2d 898, 899-900 [1997], lv denied 90 NY2d 890[1997], cert denied 524 US 918 [1998]).
Defendant further contends that his indelible right to counsel was violated becausehe was represented on unrelated charges at the time he was questioned by the police withrespect to the present offense. We reject that contention. "[D]efendant was not in custodyon the unrelated charge[s] for which he had previously invoked his right to counsel, andthus he did not have a derivative right to counsel with respect to the [robbery] charge"(People v Mantor, 96 AD3d1645, 1646 [2012], lv denied 19 NY3d 1103 [2012]; see People vSteward, 88 NY2d 496, 500-502 [1996], rearg denied 88 NY2d 1018[1996]). Defendant's contention that the court abused its discretion in denying his requestfor an adjournment of the trial in order to obtain a transcript of his codefendant's trial iswithout merit, particularly given that the transcript might never be available due to theserious illness of the court reporter who transcribed the codefendant's trial. " 'The court'sexercise of discretion in denying a request for an adjournment will not be overturnedabsent a showing of prejudice' " (People v Aikey, 94 AD3d 1485, 1486 [2012], lv denied19 NY3d 956 [2012]; see People v Arroyo, 161 AD2d 1127, 1127 [1990],lv denied 76 NY2d 852 [1990]), which was not established here.
Defendant failed to preserve for our review his contention that the conviction is not[*2]supported by legally sufficient evidence because hefailed to renew his motion for a trial order of dismissal after presenting evidence (seePeople v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). In any event, that contention is without merit. Viewing the evidence inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that the evidence is legally sufficient to establish that defendant,acting with his codefendant who was actually present, forcibly stole cocaine and moneyfrom the respective victims (seePeople v Leggett, 101 AD3d 1694, 1694 [2012]; see generally People vDanielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490,495 [1987]). Viewing the evidence in light of the elements of the crime as charged to thejury (see Danielson, 9 NY3d at 349), we further conclude that, although adifferent result would not have been unreasonable, the jury did not fail to give theconflicting evidence the weight it should be accorded (see generally Bleakley, 69NY2d at 495).
We have reviewed defendant's remaining contentions and conclude that nonerequires modification or reversal of the judgment. Present—Centra, J.P.,Peradotto, Carni, Sconiers and Whalen, JJ.