| People v Person |
| 2017 NY Slip Op 06734 [153 AD3d 1561] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v DerrickPerson, Appellant. |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (David Heraty of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered August 4, 2014. The judgment convicted defendant, upon a jury verdict, of robbery inthe first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [4]). The conviction arises from anincident in which defendant and a codefendant robbed the victim at gunpoint and left the scene ina vehicle driven by another codefendant (see People v Thompson, 147 AD3d 1298, 1299 [2017], lvdenied 29 NY3d 1037 [2017];People v Evans, 142 AD3d 1291, 1291 [2016], lv denied 28 NY3d 1144[2017]). Defendant and the codefendants were apprehended after a high-speed police pursuit, thegun used in the robbery was found near several bullets and a magazine along the pursuit route,and the victim identified defendant and one codefendant in showup identification procedures. Attrial, Supreme Court charged the jury on the affirmative defense that the gun "was not a loadedweapon from which a shot, readily capable of producing death or other serious physical injury,could be discharged" (§ 160.15 [4]), but the jury nonetheless convicted all threedefendants of robbery in the first degree.
We reject defendant's contention that the evidence established as a matter of law that the gunwas not loaded during the robbery and thus is legally insufficient to support his conviction. Aswe previously determined on the appeal of a codefendant, the presence of ammunition in thevicinity of the gun when it was recovered supports a reasonable inference that it "was 'loaded atthe time of the crime, but unloaded at the time it was recovered' " (Thompson,147 AD3d at 1300). Defendant's remaining challenges to the legal sufficiency of the evidence arenot preserved for our review inasmuch as he failed to raise them in his motion for a trial order ofdismissal at the close of the People's case (see People v Gray, 86 NY2d 10, 19-21[1995]). Defendant contends that, because the evidence was undisputedly sufficient to establish alesser included offense and the court thus could not have issued a trial order of dismissal (seeCPL 290.10 [1] [a]; People vVaughan, 48 AD3d 1069, 1070 [2008], lv denied 10 NY3d 845 [2008], certdenied 555 US 910 [2008]), the preservation rule set forth in Gray should not applyhere. We reject that contention, and conclude that he remained obligated to raise his sufficiencychallenges in his motion in order to preserve them for our review (see CPL 470.05 [2]; People v Whited, 78 AD3d 1628,1629 [2010], lv denied 17 NY3d 810 [2011]). Notably, the court could have affordeddefendant relief by declining to submit the charged degree of offense to the jury on the ground ofinsufficient evidence if his challenges had merit (see CPL 300.30 [1]; People vMayo, 48 NY2d 245, 248-249 [1979]).
Notwithstanding defendant's failure to preserve all of his sufficiency contentions for ourreview, "we necessarily review the evidence adduced as to each of the elements of the crime[ ] inthe context of our review of [his] challenge regarding the weight of the evidence" (People v Stephenson, 104 AD3d1277, 1278 [2013], lv denied 21 NY3d 1020 [2013], denied reconsideration23 NY3d 1025 [2014] [internal quotation marks omitted]; see People v Danielson, 9 NY3d342, 349 [2007]). Viewing the evidence in light of the elements of the crime as charged tothe jury (see Danielson, 9 NY3d at 349), however, we conclude that the verdict is notagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]), including with respect to the affirmative defense (see Thompson, 147 AD3d at1300), as well as with respect to whether the gun specifically appeared to be a rifle when it wasdisplayed to the victim, as required by the jury charge.
We also reject defendant's contention that he was deprived of his Sixth Amendment right ofconfrontation by the victim's invocation of his privilege against self-incrimination oncross-examination. The victim invoked the privilege in response to questions about a collateralmatter, i.e., the underlying facts of an unrelated conviction pending on appeal, and we thereforeconclude that the court properly declined to preclude his testimony in favor of charging the jurythat it could consider his refusal to answer questions in evaluating his credibility (see People v Joaquin, 150 AD3d618, 619 [2017]; People vHickman, 60 AD3d 865, 866 [2009], lv denied 12 NY3d 916 [2009]; seegenerally People v Siegel, 87 NY2d 536, 544 [1995]; People v Chin, 67 NY2d 22,28-29 [1986]). It was not " 'patently clear' " that the victim's answers could nothave been used against him in the future (People v Grimes, 289 AD2d 1072, 1073[2001], lv denied 97 NY2d 755 [2002]; see generally People v Cantave, 21 NY3d 374, 380 [2013], motto clarify op denied 21 NY3d 1070 [2013]), and the People were not obligated to offer thevictim immunity in exchange for his testimony (see generally Chin, 67 NY2d at 32-33;People v Adams, 53 NY2d 241, 247-248 [1981]). In addition, we conclude that defendantwas not deprived of his right of confrontation by the admission in evidence of statements madeby a codefendant. Because "[t]he statements incriminated defendant, if at all, only in light ofother evidence produced at trial . . . , and the court directed the jury to consider thestatements only against the codefendant who made them" (Thompson, 147 AD3d at1300-1301), the codefendant "is not considered to be a witness against . . .defendant within the meaning of the Sixth Amendment" (id. at 1301 [internal quotationmarks omitted]; see Richardson v Marsh, 481 US 200, 206-209 [1987]; People v Cedeno, 27 NY3d 110,117-118 [2016], cert denied 580 US &mdash, 137 S Ct 205 [2016]).
Defendant has not established that he was denied effective assistance of counsel. Counsel'sfailure to preserve all of defendant's legal sufficiency challenges does not constitute ineffectiveassistance because those challenges would not have been meritorious (see People v Jackson, 108 AD3d1079, 1080 [2013], lv denied 22 NY3d 997 [2013]). Defendant's contention thatcounsel failed to investigate the DNA evidence introduced at trial involves matters outside therecord and must be raised by way of a motion pursuant to CPL article 440 (see People v Blocker, 132 AD3d1287, 1287-1288 [2015], lv denied 27 NY3d 992 [2016]; People v Ocasio, 81 AD3d 1469,1470 [2011], lv denied 16 NY3d 898 [2011], cert denied 565 US 910 [2011]).Contrary to defendant's contention, we do not view certain comments made by counsel duringcross-examination of the DNA witnesses as proof that counsel was unfamiliar with the subjectmatter of their testimony. We further conclude that defendant has not demonstrated the absenceof a legitimate explanation for counsel's alleged error in failing to move to reopen thesuppression hearing when the victim gave testimony at trial tending to establish that the showupidentification procedures were unduly suggestive (see People v Gray, 27 NY3d 78, 83-84 [2016]; People v Robles, 116 AD3d 1071,1071 [2014], lv denied 24 NY3d 1088 [2014]; People v Elamin, 82 AD3d 1664, 1665 [2011], lv denied17 NY3d 794 [2011]; see generallyPeople v Carver, 27 NY3d 418, 420-421 [2016]). Even construing counsel's posttrialassertion that he had been "somewhat asleep at the switch" with respect to the possibility ofreopening the hearing as an admission that he did not make a conscious decision to forgo themotion, we conclude that his subjective reasoning is immaterial, and that declining to make themotion was consistent with the actions of a reasonably competent attorney (see generally People v Ambers, 26NY3d 313, 317-318 [2015]; People v Alicea, 229 AD2d 80, 85-86 [1997], lvdenied 90 NY2d 890 [1997]). Furthermore, in view of the ample evidence apart from thevictim's pretrial identification establishing defendant's identity as one of the perpetrators of therobbery, we conclude that any error by counsel in failing to move to reopen the hearing "was notso egregious and prejudicial as to deprive defendant of a fair trial" (People v Coley, 148 AD3d 1651,1652 [2017], lv denied 29 NY3d 1030 [2017] [internal quotation marks omitted]; seegenerally People v Benevento, 91 NY2d 708, 713-714 [1998]).
Defendant further contends that the court improperly influenced the jury's deliberations byinstructing the jury to resume deliberating after it returned an incomplete, and therefore legallydefective, verdict relative to codefendant Evans. That contention is not preserved for our reviewbecause defendant did not join in the mistrial motion made by codefendant Thompson orotherwise specifically object to the court's handling of the issue (see generally CPL470.05 [2]; People v Buckley, 75 NY2d 843, 846 [1990]). In any event, we conclude thatthe court acted within its discretion in directing the jury to resume deliberations (see CPL310.50 [2]; Thompson, 147 AD3d at 1299). Defendant's reliance on People v Rivera (15 NY3d 207[2010]) is misplaced because that case involved a partial verdict rather than a defective verdict(see id. at 210-212; compare CPL 310.50 [2], with CPL 310.70 [1]).Defendant's contention that the verdict sheet contained improper annotations is likewise bothunpreserved for our review (see Peoplev Belvett, 105 AD3d 538, 538 [2013], lv denied 21 NY3d 1040 [2013]; People v Boyd, 50 AD3d 1578,1578-1579 [2008], lv denied 11 NY3d 785 [2008]), and without merit (see People vCole, 85 NY2d 990, 991-992 [1995]).
Finally, we conclude that defendant was not denied a fair trial by the cumulative effect of thealleged errors and that the sentence is not unduly harsh or severe. Present—Whalen, P.J.,Smith, Centra, Peradotto and Carni, JJ.