| People v Griggs |
| 2014 NY Slip Op 03367 [117 AD3d 1523] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vPerry C. Griggs, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Perry C. Griggs, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered November 15, 2011. The judgment convicted defendant, upon a juryverdict, of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the first degree (Penal Law § 160.15 [4]). Althoughwe agree with defendant that he should not have been shackled when he testified beforethe grand jury, we conclude that reversal on that basis is not warranted. As the Peoplecorrectly contend, the prosecutor's cautionary instructions to the grand jury weresufficient to dispel any potential prejudice to defendant (see People v Burroughs, 108AD3d 1103, 1106 [2013], lv denied 22 NY3d 995 [2013]). Defendantcontends that the prosecutor engaged in misconduct during the grand jury proceedings byfailing to inform the members of the grand jury that defendant had requested that acertain witness be called. That contention is not preserved for our review inasmuch asdefendant failed to move to dismiss the indictment on that ground (see People vGordon, 277 AD2d 1053, 1053 [2000], lv denied 96 NY2d 759 [2001]). Inany event, the record establishes that, under the circumstances presented here, there wasno "likelihood [or] possibility of prejudice" inasmuch as the witness did not observe thecriminal transaction at issue (People v Adessa, 89 NY2d 677, 689 [1997]).Defendant likewise failed to preserve for our review his further contention that theprosecutor engaged in misconduct by improperly cross-examining him before the grandjury (see Gordon, 277 AD2d at 1053).
We reject defendant's contention that he was denied effective assistance of counselbecause counsel failed to make a motion to dismiss the indictment based upon the allegeddefects in the grand jury proceedings (see generally People v Baldi, 54 NY2d137, 147 [1981]).
Contrary to defendant's further contention, the evidence at trial is legally sufficient toestablish that he forcibly stole property from the victim while using a gun (see People v Gerena, 49 AD3d1204, 1205-1206 [2008], lv denied 10 NY3d 958 [2008]; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Defendant asserts that he had a claimof right defense based on good faith, and he contends that the evidence of intent islegally insufficient when viewed in light of that defense. Defendant's contention iswithout merit, however, inasmuch as he failed to present any evidence that the particularbills making up the $30 he forcibly took from the victim "had any significance" todefendant (see People vPagan, 19 NY3d 91, 97-99 [2012]). In any event, fungible cash is not a chattelwithin the scope of a claim of right defense based on good faith (see People vReid, 69 NY2d 469, 476 [1987]). Viewing the evidence in light of the elements ofthe crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). The sentence is not unduly harsh or severe.
We have considered the remaining contentions of defendant in his main and pro sesupplemental briefs and conclude that none warrant reversal or modification of thejudgment. Present—Centra, J.P., Peradotto, Carni, Valentino and Whalen, JJ.