| People v Williams |
| 2015 NY Slip Op 01007 [125 AD3d 1300] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDerek Williams, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered June 9, 2010. The appeal was held by this Court by order entered January3, 2014, decision was reserved and the matter was remitted to the Supreme Court, ErieCounty, for further proceedings (113 AD3d 1116 [2014]). The proceedings were heldand completed.
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 [3]) and robberyin the second degree (§ 160.10 [2] [a]). We previously held the case,reserved decision and remitted the matter to Supreme Court for a reconstruction hearingto determine whether defendant and his attorney were notified of the contents of a jurynote and what action, if any, the court took with respect to that note (People vWilliams, 113 AD3d 1116, 1117 [2014]). During the reconstruction hearing, theparties stipulated to the admission in evidence of the jury note, and of the transcript ofthat part of the trial proceedings concerning the jury note, which had been inadvertentlyexcluded from the original record on appeal. That evidence establishes that the jury noteconsisted of a request for a readback of the entire testimony of a witness, and that thecourt read the note into the record in the presence of defendant and his attorney. Then,pursuant to the court's direction, the court reporter read back the requested testimony.Inasmuch as the jury note requested only the readback of a witness's entire testimony,defendant was required to preserve his challenge to the court's response (see People v Gerrara, 88 AD3d811, 812-813 [2011], lv denied 18 NY3d 957 [2012], cert denied568 US &mdash, 133 S Ct 857 [2013]; People v Bryant, 82 AD3d 1114, 1114 [2011], lvdenied 17 NY3d 792 [2011]). Defendant failed to do so, and his contention thereforeis unpreserved (see People vAlcide, 21 NY3d 687, 693-694 [2013]). We decline to exercise our power toreview defendant's contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
Defendant also failed to preserve for our review his challenge to the legal sufficiencyof the evidence with respect to whether he possessed and used a dangerous instrument,and whether the victim suffered a physical injury, inasmuch as his motion for a trial orderof dismissal was not " 'specifically directed' at" those alleged shortcomings in theevidence (People v Gray, 86 NY2d 10, 19 [1995]). In any event, defendant'scontention lacks merit, inasmuch as there is a "valid line of reasoning and permissibleinferences" that could lead reasonable persons to the conclusion reached by the jurybased on the evidence presented at trial (People v Bleakley, 69 NY2d 490, 495[1987]). Furthermore, viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is contrary to the weight of the evidence (see generally Bleakley, 69NY2d at 495).
Contrary to defendant's further contention, "defense counsel's failure to make aspecific motion for a trial order of dismissal at the close of the People's case [does] notconstitute [*2]ineffective assistance of counsel, inasmuchas any such motion would have had no chance of success" (People v Horton, 79 AD3d1614, 1616 [2010], lv denied 16 NY3d 859 [2011]; see generally People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). With respect todefendant's remaining allegations of ineffective assistance of counsel, defendant failed todemonstrate a lack of strategic or other legitimate explanations for defense counsel'salleged shortcomings (seePeople v McGee, 87 AD3d 1400, 1402-1403 [2011], affd 20 NY3d 513[2013]; People v Benevento, 91 NY2d 708, 712-713 [1998]). We conclude thatthe evidence, the law and the circumstances of this case, viewed in totality and as of thetime of the representation, establish that defendant received meaningful representation(see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, defendant failed to preserve for our review his contention that the sentencewas vindictive (see People v Hurley, 75 NY2d 887, 888 [1990]; People v Irrizarry, 37 AD3d1082, 1083 [2007], lv denied 8 NY3d 946 [2007]) and, in any event, thatcontention is also without merit (see Irrizarry, 37 AD3d at 1083). It is well settledthat " '[t]he mere fact that a sentence imposed after trial is greater than thatoffered in connection with plea negotiations is not proof that defendant was punished forasserting his right to trial' " (id.). The sentence is not unduly harsh orsevere. Present—Smith, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.