| People v Minard |
| 2015 NY Slip Op 00912 [125 AD3d 691] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kenneth Minard, Appellant. |
Robert C. Mitchell, Riverhead, N.Y. (Louis E. Mazzola of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Braslow, J.), rendered August 16, 2012, convicting him of attempted robbery in the firstdegree and assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted of attempted robbery in the first degree and assault inthe second degree in connection with an incident in which he attempted to take moneyfrom the complainant. An altercation ensued, during which the defendant was stabbed,the complainant was injured, and, according to the trial testimony of two eyewitnessesand the complainant, the defendant put a gun to the complainant's head. The defendantappeals from the judgment of conviction.
To establish entitlement to a charge of a lesser included offense, a defendant mustshow both that the greater crime cannot be committed without having concomitantlycommitted the lesser by the same conduct, and that a reasonable view of the evidencesupports a finding that he or she committed the lesser, but not the greater, offense (seeCPL 1.20 [37]; 300.50 [1]; People v Rivera, 23 NY3d 112, 120 [2014]). Althoughrobbery in the third degree is a lesser included offense of robbery in the first degree, herethere is no reasonable view of the evidence to support a jury finding that the defendantcommitted the lesser, but not the greater, offense. The complainant and eyewitnessestestified that the defendant held a gun to the complainant's head, and other witnessestestified that the defendant later told them that he had pulled out a gun during the event.No other evidence contradicted that testimony. Accordingly, the County Court properlydenied the defendant's request to charge attempted robbery in the third degree as a lesserincluded offense of attempted robbery in the first degree (see People v Rivera, 23NY3d at 121; People vJames, 11 NY3d 886, 888 [2008]; People v Scarborough, 49 NY2d 364,372 [1980]; People vMitchell, 59 AD3d 739 [2009]).
The defendant's contention that the evidence was legally insufficient to support hisconvictions is partially unpreserved for appellate review (see People v Hawkins, 11NY3d 484 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that theevidence was legally sufficient to establish the defendant's guilt beyond a reasonabledoubt. Moreover, upon our independent review pursuant to CPL 470.15 (5), we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v [*2]Romero, 7 NY3d 633 [2006]).
The defendant's contention that the County Court erred in denying his motion for amistrial without conducting a Buford inquiry (see People v Buford, 69NY2d 290 [1987]) of a certain juror is without merit (see People v Mejias, 21 NY3d 73, 80 [2013]; People vBuford, 69 NY2d at 299; People v Boney, 119 AD3d 701, 702 [2014]).
The defendant's contention that the County Court's denial of his application for coststo obtain the appearance of a witness for further cross-examination deprived him of dueprocess and the right to present a defense is unpreserved for appellate review (seeCPL 470.05 [2]). In any event, the contention is without merit (see People v Flowers, 102AD3d 885 [2013]; People v Moczo, 261 AD2d 340 [1999]).
The defendant's contention that his adjudication as a persistent felony offender wasunconstitutional pursuant to Apprendi v New Jersey (530 US 466 [2000]) and itsprogeny is unpreserved for appellate review and, in any event, is without merit (seeCPL 470.05 [2]; People vQuinones, 12 NY3d 116 [2009]; People v Rivera, 5 NY3d 61 [2005]; People vRosen, 96 NY2d 329 [2001]). Furthermore, the County Court's determination tosentence the defendant as a persistent felony offender was a provident exercise of itsdiscretion (see Penal Law § 70.10 [2]; People v Boney, 119AD3d at 703; People vDixon, 107 AD3d 735, 736 [2013]; People v Bazemore, 100 AD3d 915 [2012]). The CountyCourt's conclusion that the nature of the defendant's criminal conduct in the instantmatter, his criminal record, and his character warranted extended incarceration andlifetime supervision is supported by the record (see People v Dixon, 107 AD3d 735 [2013]; People v Bazemore, 100 AD3d915 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention does not warrant reversal. Rivera, J.P.,Dickerson, Roman and Cohen, JJ., concur.