| People v Spears |
| 2015 NY Slip Op 01093 [125 AD3d 1400] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAndrew T. Spears, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered January 23, 2013. The judgment convicted defendant, upon a jury verdict,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 [3]). The chargestemmed from an incident in which defendant stole money and cell phones from thevictim and struck the victim in the head with a firearm.
Defendant contends that the conviction is not supported by legally sufficientevidence because the People failed to prove that the firearm was loaded, and because anunloaded firearm does not constitute a "dangerous instrument" within the meaning ofPenal Law § 160.15 (3). Defendant failed to preserve that contention forour review (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, thecontention lacks merit inasmuch as we previously have determined that a "gun. . . used as a bludgeon" is a dangerous instrument (People vWooden, 275 AD2d 935, 935 [2000], lv denied 96 NY2d 740 [2001];see Penal Law § 10.00 [13]). Moreover, viewing the evidence in thelight most favorable to the People, we conclude that " 'there is a valid line ofreasoning and permissible inferences from which a rational jury could have found theelements of [robbery in the first degree] proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d342, 349 [2007]).
Defendant's related contention that his failure to preserve the above sufficiencycontention should be excused because he was denied effective assistance of counsel israised for the first time in his reply brief and is therefore not properly before us (see Matter of Sedita v Sacha,99 AD3d 1259, 1260 [2012]). In any event, we note that defense counsel's allegedfailure to preserve a meritless issue for our review does not constitute ineffectiveassistance of counsel (seePeople v Stachnik, 101 AD3d 1590, 1591 [2012], lv denied 20 NY3d1104 [2013]).
Defendant contends that his conviction is against the weight of the evidence because,inter alia, there was no evidence that he used an operable and loaded firearm, andbecause some of the People's witnesses were not credible. As we note above, the Peoplewere not required to prove that the firearm was operable or loaded in order to prove thedangerous instrument element of the crime (see Wooden, 275 AD2d at 935), andwe see no reason to disturb the jury's credibility determinations (see People v Curry, 82 AD3d1650, 1651 [2011], lv denied 17 NY3d 805 [2011]; People vGritzke, 292 AD2d 805, 805-806 [2002], lv denied 98 NY2d 697 [2002]).Viewing the evidence in light of the elements of the crime as charged to the jury (seeDanielson, 9 NY3d at 349), we conclude that the verdict is not against the weight ofthe evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contention that the verdict isrepugnant [*2]inasmuch as he failed to object to thealleged repugnancy of the verdict before the jury was discharged (see People v Ali, 89 AD3d1417, 1420 [2011], lv denied 18 NY3d 922 [2012]; see also People vLurcock, 219 AD2d 797, 798 [1995], lv denied 88 NY2d 881 [1996]). In anyevent, we conclude that the contention lacks merit (see People v Tucker, 55NY2d 1, 7 [1981], rearg denied 55 NY2d 1039 [1982]; People v McLaurin, 50 AD3d1515, 1516 [2008]; see alsoPeople v Clanton, 19 AD3d 1035, 1035-1036 [2005], lv denied 5 NY3d804 [2005]).
The sentence is not unduly harsh or severe. We have reviewed defendant's remainingcontentions and conclude that they are either unpreserved or lacking in merit.Present—Centra, J.P., Fahey, Valentino, Whalen and DeJoseph, JJ.