| People v Morales |
| 2015 NY Slip Op 07408 [132 AD3d 1410] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Morales, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.),rendered June 18, 2012. The judgment convicted defendant, upon a jury verdict, ofrobbery 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]). Defendantcontends that the judgment should be reversed and the indictment dismissed because hewas improperly shackled and dressed in jail attire during the grand jury proceeding.Defendant failed to preserve that contention for our review (see People v Williams, 90AD3d 1514, 1515 [2011], lv denied 18 NY3d 999 [2012]) and, in any event,it lacks merit. "[T]he evidence presented to the grand jury was overwhelming, and itcannot be said that defendant's . . . shackling [and jail attire] amounted to an'instance[ ] where prosecutorial wrongdoing, fraudulent conduct or errors potentiallyprejudice[d] the ultimate decision reached by the [g]rand [j]ury' such that dismissal of theindictment is warranted" (People v Burroughs, 108 AD3d 1103, 1106 [2013], lvdenied 22 NY3d 995 [2013], quoting People v Huston, 88 NY2d 400, 409[1996]). We reject defendant's further contention that he received ineffective assistanceof counsel based on defense counsel's failure to object to the shackling and jail attireduring the grand jury proceeding. Viewing the evidence, the law and the circumstancesof this case, in totality and as of the time of the representation, we conclude thatdefendant received meaningful representation (see generally People v Baldi, 54NY2d 137, 147 [1981]).
Defendant contends that the verdict is against the weight of the evidence because theevidence established that he used force with the intent of escaping from store securitypersonnel, and not with the intent of retaining control of stolen property required for hisconviction of robbery under Penal Law § 160.15 (3). We reject thatcontention. The evidence at trial established that defendant took a pair of boots out of thestore without paying for any merchandise, and then defendant pulled out a knife whenconfronted by store security personnel. " 'Given that defendant was in possessionof the stolen property while he was engaged in such use of force, the jury was entitled toinfer that his purpose in using force was to retain control of the stolen property, notmerely to escape' " (People v Sullivan, 119 AD3d 1335, 1336 [2014], lvdenied 25 NY3d 953 [2015]). We therefore conclude that, viewing the evidence inlight of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Smith, J.P.,Centra, Valentino, Whalen and DeJoseph, JJ.