| People v Minor |
| 2015 NY Slip Op 05230 [129 AD3d 1337] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vElizabeth D. Minor, Appellant. |
Pamela B. Bleiwas, Ithaca, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Gary U. Surdell of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Tompkins County(Rossiter, J.), rendered July 12, 2013, upon a verdict convicting defendant of the crimesof robbery in the second degree (two counts), petit larceny and conspiracy in the fourthdegree.
Defendant and codefendant Jameel C. Melton entered the victim's apartment inTompkins County, where Melton pointed what appeared to be a pistol at the victim'shead while defendant gathered cash and various other items belonging to the victim.Both were soon arrested and charged with numerous crimes as a result of their conduct.Defendant's pretrial motion to sever her trial from that of Melton was denied. A joint trialensued resulting in a jury finding defendant guilty of robbery in the first degree, robberyin the second degree, petit larceny and conspiracy in the fourth degree. Thereafter,County Court granted defendant's CPL 330.30 motion, which was not opposed by thePeople, to reduce the conviction for robbery in the first degree to robbery in the seconddegree. She was sentenced to concurrent terms on all counts, with the longest sentencesof seven years in prison plus postrelease supervision on the two robbery counts.Defendant appeals.
The verdict was not against the weight of the evidence. In weight of the evidenceanalysis, where a different verdict would not have been unreasonable, we "must, like thetrier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony"(People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks andcitations omitted]; accordPeople v Romero, 7 NY3d 633, 643 [2006]; see People v Kancharla, 23 NY3d 294, 303 [2014]).Evidence at trial included [*2]that the victim anddefendant had met on the prior evening and returned to the victim's apartment where thevictim paid defendant for sex. Before the transaction was completed, defendant left theapartment but told the victim that she would return. When defendant returned, the victimopened the door to let her in the apartment, and Melton and an unidentified female thenentered behind her. Melton demanded to know where the victim kept his money and,when he denied having money in the apartment, Melton pointed a gun—lateridentified as an unloaded air gun—at the victim's head. The victim then disclosedwhere the keys to his safe were located; defendant retrieved the keys, opened the safe andremoved $175. Additional items of the victim's personal property were placed inpillowcases by defendant. Defendant and Melton then fled; the unidentified female whohad accompanied them had left earlier.
Defendant asserts that the weight of the evidence establishes that she acted underduress (see Penal Law § 40.00). However, for tactical reasons,defendant had not pursued this defense at trial nor requested a jury charge regardingduress because of concern that pursuing such a defense would have opened the door forthe People to present evidence of defendant's criminal history (see People vCalvano, 30 NY2d 199, 205 [1972]; People v Urbaez, 219 AD2d 568, 568[1995], lv denied 87 NY2d 908 [1995]). In any event, the evidence that Meltonpointed his gun in defendant's general direction for a "split second" when giving herdirections and that she briefly apologized to the victim when leaving does not convinceus that the weight of the evidence established duress. After viewing the proof in a neutrallight while giving deference to the jury's credibility determinations (see e.g. People v Rivera, 124AD3d 1070, 1073-1074 [2015]; People v Lloyd, 118 AD3d 1117, 1121 [2014], lvdenied 25 NY3d 951 [2015]), we are unpersuaded that the jury's verdict was againstthe weight of the evidence as to any of the crimes of which defendant wasconvicted.
County Court did not err in denying defendant's motion for a separate trial fromMelton. A court, "in its discretion for good cause shown, may grant a separate trial basedupon its determination that a joint trial will yield undue prejudice to a defendant"(People v Melendez, 285 AD2d 819, 822 [2001], lv denied 97 NY2d 731[2002]; see People vThompson, 79 AD3d 1269, 1271-1272 [2010]). Where the "proof against bothdefendants is supplied to a great extent by the same evidence, only the most cogentreasons warrant a severance" (People v Melendez, 285 AD2d at 822; accordPeople v Mahboubian, 74 NY2d 174, 183 [1989]). Initially, we note that the basisasserted for severance by defendant on appeal was not advanced before County Courtand thus is not properly before us (see People v Hall, 48 AD3d 1032, 1033 [2008], lvdenied 11 NY3d 789 [2008]). In any event, the record does not reveal undueprejudice to defendant in a joint trial, and County Court did not abuse its discretion indenying defendant's motion for severance (see e.g. People v Thompson, 79 AD3dat 1271-1272).
McCarthy, Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.