| People v Agee |
| 2015 NY Slip Op 05298 [129 AD3d 1559] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1](June 19, 2015)
| The People of the State of New York, Respondent, vMichael D. Agee, Appellant. |
Robert M. Graff, Lockport, for defendant-appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedMarch 14, 2013. The judgment convicted defendant, upon a jury verdict, of attemptedrobbery in the first degree, robbery in the first degree, and robbery in the seconddegree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Niagara County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of attempted robbery in the first degree (Penal Law §§ 110.00,160.15 [4]), robbery in the first degree (§ 160.15 [4]) and robbery in thesecond degree (§ 160.10 [1]). The attempted robbery involved a store, andthe robbery counts involved a food delivery person two days later.
Defendant failed to preserve for our review his contention that the evidence is legallyinsufficient to establish his intent with respect to the attempted robbery count inasmuchas his motion for a trial order of dismissal was not specifically directed at that issue(see People v Gray, 86 NY2d 10, 19 [1995]). In any event, that contention iswithout merit. The evidence established that defendant entered the store in the companyof another person, approached an employee behind a desk, claimed that he had gold tosell to the store, and called over a second employee. When the second employeeapproached, defendant pulled out a loaded revolver and pointed it at the secondemployee's face. When defendant turned to look at a third employee, the secondemployee tackled defendant. A scuffle ensued, and defendant and his companion fled. Awitness testified that she saw defendant, who was holding a gun, and his companion fleefrom the vicinity of the store and enter a vehicle that was waiting with its engine running.There was also evidence that, several times before the attempted robbery of the store,defendant had tried to sell items to the store, but was unsuccessful in doing so. Inaddition, on the day before the attempted robbery, defendant entered the store and askedabout its hours of business. Viewing the evidence in the light most favorable tothe People, as we must (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is a " 'valid line of reasoning and permissible inferences [that]could lead a rational person' " to the conclusion reached by the jury, i.e., thatdefendant intended to forcibly steal property while displaying a firearm (People vBleakley, 69 NY2d 490, 495 [1987]; Penal Law § 160.15 [4]).
Defendant further contends that the verdict with respect to his conviction of therobbery counts is against the weight of the evidence. Although there was conflictingtestimony whether defendant committed those crimes and, thus, "an acquittal would nothave been unreasonable" (People v Danielson, 9 NY3d 342, 348 [2007]; seegenerally Bleakley, 69 NY2d at 495), we conclude that, viewing the evidence in lightof the elements of those crimes as charged to the jury (see Danielson, 9 NY3d at349), the verdict is not against the weight of the evidence (see generally Bleakley,69 NY2d at 495). " '[R]esolution of issues of credibility, as well as the weight tobe accorded to the evidence presented, are primarily questions to be determined by thejury' " (People vWest, 118 AD3d 1450, 1451-1452 [2014], lv denied 24 NY3d 1048[2014]), and we see no reason to disturb the jury's [*2]determination of those issues in this case.
Defendant contends that the prosecutor violated County Court's Sandovalruling by cross-examining him regarding an uncharged crime, and that he wasthereby deprived of a fair trial by prosecutorial misconduct. That contention is withoutmerit. The court struck the testimony concerning the uncharged crime and instructed thejury to disregard that testimony, and the jury is presumed to have followed the court'scurative instruction (see People v Mims, 278 AD2d 822, 823 [2000], lvdenied 96 NY2d 832 [2001]; see also People v O'Neal, 38 AD3d 1305, 1307 [2007],lv denied 9 NY3d 848 [2007]). We reject defendant's contention that cumulativeerrors deprived him of a fair trial (see West, 118 AD3d at 1452).
We reject defendant's further contention that he was denied due process and effectiveassistance of counsel during the sentencing proceeding when defense counsel declined tospeak on his behalf. We conclude that "no statement made by defense counsel atsentencing 'would have had an impact on the sentence imposed' " (People v Saladeen, 12 AD3d1179, 1180 [2004], lv denied 4 NY3d 767 [2005]).
We agree with defendant, however, that the court erred in failing to determinewhether he should be afforded youthful offender status (see People v Rudolph, 21NY3d 497, 501 [2013]). Defendant was convicted of an armed felony offense, andthe court therefore was required "to determine on the record whether the defendant is aneligible youth by considering the presence or absence of the factors set forth in CPL720.10 (3) . . . [and] make such a determination on the record" (People vMiddlebrooks, 25 NY3d 516, 527 [2015]).Inasmuch as the court failed to do so here, we hold the case, reserve decision, and remitthe matter to County Court to make and state for the record "a determination of whetherdefendant is a youthful offender" (Rudolph, 21 NY3d at 503).
We have considered defendant's remaining contentions and conclude that they arewithout merit. Present—Scudder, P.J., Smith, Valentino, Whalen and DeJoseph,JJ.