| People v Barbuto |
| 2015 NY Slip Op 02620 [126 AD3d 1501] |
| March 27, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJoel S. Barbuto, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen Russo-mclaughlin ofcounsel), for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Daniel J. Punch of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered August 8, 2012. The judgment convicted defendant, after a nonjury trial, ofattempted robbery in the first degree (two counts) and criminal possession of a weapon inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, following a nonjury trial,of two counts of attempted robbery in the first degree (Penal Law§§ 110.00, 160.15 [1], [3]) and one count of criminal possession of aweapon in the third degree (§ 265.02 [1]), defendant contends, inter alia,that the evidence is legally insufficient to support the conviction. To the extent thatdefendant has preserved that contention for our review, we conclude that it lacksmerit.
Initially, defendant contends that the evidence of serious physical injury is legallyinsufficient to support the conviction of attempted robbery in the first degree under PenalLaw § 160.15 (1). The People presented evidence that, during the course ofthe attempted robbery, defendant stabbed the victim in the back of the neck and the backof the chest. As a result, the victim suffered a "moderate size[d]" hemopneumothorax,which meant that both air and blood were trapped inside the victim's chest. The victimalso had a collapsed lung, "[s]o he did not have sufficient oxygen." A chest tube wasinserted "[t]o evacuate blood and air so the lung [could] expand." Over the course of thefirst few hours of medical treatment, 20 ounces of blood were drained from the victim'schest. The People's medical expert testified that, if left untreated, the natural progressionof the victim's hemopneumothorax could have resulted in death either from a tensionpneumothorax, i.e., air trapped in the chest with a high tension, or from the hemothoraxwhich, if not drained, would cause a significant amount of bleeding. Such evidence islegally sufficient to establish serious physical injury (see People v Guillen, 65 AD3d 977, 977 [2009], lvdenied 13 NY3d 939 [2010]; People v Thompson, 224 AD2d 646, 646-647[1996], lv denied 88 NY2d 970 [1996]; see also Matter of Eleda, 280AD2d 405, 405 [2001]; People v Wright, 105 AD2d 1088, 1088-1089 [1984],following remittal 124 AD2d 1015 [1986], lv denied 69 NY2d 751[1987]).
Even assuming, arguendo, that defendant preserved for our review his contentionsthat there is insufficient proof of his "intent to cause a serious physical injury" and "thatthe proof also failed to establish he had formed the specific intent to commit a robbery"(see generally People v Gray, 86 NY2d 10, 19 [1995]), we conclude that thosecontentions lack merit. It is well established that "a robbery occurs when a personforcibly steals property by the use of, or the threatened use of, immediate physical forceupon another person for the purpose of compelling that person to deliver up property orto prevent or overcome resistance to the taking" (People v Miller, 87 NY2d 211,214 [1995]). The "gradation of robbery offenses [is based on] the presence of one of theenumerated 'aggravating factors' " (id. at 215). The attempt to commit arobbery occurs when "[a] person . . . fails to perpetrate the object crime,despite committing some act in [*2]furtherance of thatillegal end" (id.). The specific intent required is the "intent to commit a robbery"(id. at 216), i.e. "to steal" (People v De Jesus, 123 AD2d 563, 564 [1986],lv denied 69 NY2d 745 [1987]), not the intent to commit one of the enumeratedaggravating factors (see Miller, 87 NY2d at 216-217). Thus, the People were notrequired to establish that defendant had the specific intent to cause a serious physicalinjury.
With respect to the specific intent to commit a robbery, we conclude that theevidence of such intent may " 'be inferred from . . . defendant'sconduct and the surrounding circumstances' " (People v Bracey, 41 NY2d296, 301 [1977], rearg denied 41 NY2d 1010 [1977]). Viewing the evidence inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that there is legally sufficient evidence to establish defendant'sspecific intent to commit a robbery. Defendant and the codefendant approached thevictim; defendant used a knife to stab the victim; and, immediately thereafter, thecodefendant said to the victim "give us all your money."
The remainder of defendant's challenges to the sufficiency of the evidence are notpreserved for our review inasmuch as defendant's motion for a trial order of dismissalwas not " 'specifically directed' " to those grounds now raised on appeal(Gray, 86 NY2d at 19). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant further contends that he was denied effective assistance of counsel basedon numerous alleged shortcomings of defense counsel. Viewing the evidence, the lawand the circumstances of this case in totality and as of the time of the representation, weconclude that defendant received meaningful representation (see People v Baldi,54 NY2d 137, 147 [1981]). With respect to defendant's contention that defense counselshould have called a medical expert to testify for the defense, "[i]t is well establishedthat, '[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent ondefendant to demonstrate the absence of strategic or other legitimate explanations forcounsel's failure to' call such a witness" (People v Burgos, 90 AD3d 1670, 1670 [2011], lvdenied 19 NY3d 862 [2012], quoting People v Rivera, 71 NY2d 705, 709[1988]). Defendant failed to do so. In any event, to the extent that defendant's contentionis "based upon defense counsel's alleged failure to consult experts or to conduct aninvestigation with respect to the medical . . . evidence presented. . . , it involves matters outside the record on appeal . . . [and]must be raised by way of a motion pursuant to CPL article 440" (People v Ocasio, 81 AD3d1469, 1470 [2011], lv denied 16 NY3d 898 [2011], cert denied 565US &mdash, 132 S Ct 318 [2011]). We further conclude that "it is apparent from[defense counsel's] thorough cross-examination of prosecution witnesses and [her]overall performance that [she] had adequately prepared for trial" (People v Adair, 84 AD3d1752, 1754 [2011], lv denied 17 NY3d 812 [2011]; see People v Washington, 122AD3d 1406, 1406 [2014]).
Defendant contends that defense counsel was ineffective in failing to move forseverance in order to eliminate a Bruton issue (see Bruton v UnitedStates, 391 US 123 [1968]). The record establishes that counsel was aware of theissue and, for strategic reasons, opted against the motion for severance. Defendant thusfailed to establish " 'the absence of strategic or other legitimate explanations' for[defense] counsel's" failure to move for severance (People v Benevento, 91NY2d 708, 712 [1998]; seePeople v Reid, 71 AD3d 699, 700 [2010], lv denied 15 NY3d 756[2010]; People v Shell, 152 AD2d 609, 610 [1989], lv denied 74 NY2d899 [1989]; but see People vJeannot, 59 AD3d 737, 737 [2009], lv denied 12 NY3d 916[2009]).
With respect to defendant's final challenge to the effectiveness of defense counsel,we note that "[t]here is nothing in the record on appeal that would raise a colorable issueof ineffective assistance of trial counsel based on defendant's waiver of a jury trial. Ifdefendant can demonstrate facts, not recited in the record, that would raise such issue,that issue can be pursued by motion pursuant to CPL 440.10" (People v Barnes,143 AD2d 499, 499-500 [1988]; see People v Olson, 35 AD3d 890, 890-891 [2006],affd 9 NY3d 968 [2007]).
Contrary to defendant's contention, the sentence that County Court imposed on himas a second violent felony offender is not unduly harsh or severe. The People havecorrectly conceded, however, that "the presentence report has not been redacted as thecourt ordered at [*3]sentencing, and therefore it must beredacted to correct the oversight" (People v Howard, 124 AD3d 1350, 1351 [2015]).Present—Scudder, P.J., Smith, Carni, Sconiers and Whalen, JJ.