| People v Acevedo |
| 2016 NY Slip Op 01076 [136 AD3d 1386] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJose Acevedo, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Linda M. Campbell of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered July 19, 2011. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree (two counts), robbery in the second degree (two counts) andassault in the second 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, inter alia, two counts of robbery in the first degree (Penal Law§ 160.15 [3]). Defendant failed to preserve for our review his contentionthat the conviction is not supported by legally sufficient evidence. Although defendantmoved at the close of the People's case for a trial order of dismissal, he did not renew themotion at the close of his case (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]). In any event, we conclude that defendant'scontention is without merit (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Because the conviction is supported by legally sufficient evidence, thecontention of defendant that Supreme Court erred in refusing to dismiss the indictmentbased upon the alleged insufficiency of the evidence before the grand jury is notreviewable on appeal (see CPL 210.30 [6]; People v Hawkins, 113 AD3d 1123, 1125 [2014], lvdenied 22 NY3d 1156 [2014]). Contrary to defendant's further contention, viewingthe evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495).
Contrary to defendant's contention, the court properly denied his challenge for causeof a prospective juror. Although the prospective juror expressed concern regarding hisfinancial hardship as a result of his potential jury service, he reassured the court that hisemployment obligations would not prevent him from being fair and impartial (see People v Wilson, 52 AD3d941, 942 [2008], lv denied 11 NY3d 743 [2008]). "Considering that almostevery potential juror is inconvenienced by taking a week or more away from one's workor normal routine, and that each has personal concerns which could cause somedistraction from a trial, [the court] did not abuse its discretion in denying defendant'schallenge for cause" (id.).
Defendant contends that the People improperly impeached their own witness byconfronting him with his previous statement to the police. Defendant failed to preservethat contention for our review inasmuch as he did not object to the People's line ofquestioning at trial (see People vCruz, 23 AD3d 1109, 1110 [2005], lv denied 6 NY3d 811 [2006]), andwe decline to exercise our power to review it as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]).
We reject defendant's contention that the court erred in failing to strike the testimonyof the People's expert forensic examiner. Although the expert could not determine if theblood found on the knife in defendant's possession was human blood, her testimony wasstill probative [*2]on the issue whether defendant wasinvolved, either as a principal or as an accomplice, in the robbery. "The trial court isgranted broad discretion in making evidentiary rulings in connection with the preclusionor admission of testimony and such rulings should not be disturbed absent an abuse ofdiscretion[,]" and we discern no abuse of discretion here (People v Almonor, 93NY2d 571, 583 [1999]).
Finally, we reject defendant's contention that his sentence is unduly harsh and severe.Present—Centra, J.P., Peradotto, Lindley, DeJoseph and Scudder, JJ.