People v. Person

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 in the 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 of robbery in the first degree (Penal Law § 160.15 [4]). The conviction arises from an incident in which defendant and a codefendant robbed the victim at gunpoint and left the scene in a vehicle driven by another co-defendant (see People v Thompson, 147 AD3d 1298 , 1299 [2017], lv denied 29 NY3d 1037 [2017]; People v Evans, 142 AD3d 1291 ,

We reject defendant’s contention that the evidence established as a matter of law that the gun was not loaded during the robbery and thus is legally insufficient to support his conviction. As we previously determined on the appeal of a co-defendant, the presence of ammunition in the vicinity of the gun when it was recovered supports a reasonable inference that it “was loaded at the 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 are not preserved for our review inasmuch as he failed to raise them in his motion for a trial order of dismissal 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 a lesser included offense and the court thus could not have issued a trial order of dismissal (see CPL 290.10 [1] [a]; People v Vaughan, 48 AD3d 1069 , 1070 [2008], lv denied 10 NY3d 845 [2008], cert denied 555 US 910 [2008]), the preservation rule set forth in Gray should not apply here. We reject that contention, and conclude that he remained obligated to raise his sufficiency challenges 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 afforded defendant relief by declining to submit the charged degree of offense to the jury on the ground of insufficient evidence if his challenges had merit (see CPL 300.30 [1]; People v Mayo, 48 NY2d 245 , 248-249 [1979]).

Notwithstanding defendant’s failure to preserve all of his sufficiency contentions for our review, “we necessarily review the evidence adduced as to each of the elements of the crime [ ] in the context of our review of [his] challenge regarding the weight of the evidence” (People v Stephenson, 104 AD3d 1277 , 1278 [2013], lv denied 21 NY3d 1020 [2013], denied reconsideration 23 NY3d 1025 [2014] [internal quotation marks omitted];

We also reject defendant’s contention that he was deprived of his Sixth Amendment right of confrontation by the victim’s invocation of his privilege against self-incrimination on cross-examination. The victim invoked the privilege in response to questions about a collateral matter, i.e., the underlying facts of an unrelated conviction pending on appeal, and we therefore conclude that the court properly declined to preclude his testimony in favor of charging the jury that it could consider his refusal to answer questions in evaluating his credibility (see People v Joaquin, 150 AD3d 618 , 619 [2017]; People v Hickman, 60 AD3d 865 , 866 [2009], lv denied 12 NY3d 916 [2009]; see generally 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 not have 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], mot to clarify of denied 21 NY3d 1070 [2013]), and the People were not obligated to offer the victim 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 defendant was not deprived of his right of confrontation by the admission in evidence of statements made by a codefendant. Because “[t]he statements incriminated defendant, if at all, only in light of other evidence produced at trial . . . , and the court directed the jury to consider the statements only against the codefend-ant who made them” (Thompson, 147 AD3d at 1300-1301 ), the codefendant “is not considered to be a witness against . . . defendant within the meaning of the Sixth Amendment” (id. at 1301 [internal quotation marks omitted]; see Richardson v Marsh, 481 US 200 , 206-209 [1987]; People v Cedeno, 27 NY3d 110 , 117-118 [2016], cert denied 580 US —, 137 S Ct 205 [2016]).

Defendant has not established that he was denied effective assistance of counsel. Counsel’s failure to preserve all of defendant’s legal sufficiency challenges does not constitute inef

Defendant further contends that the court improperly influenced the jury’s deliberations by instructing the jury to resume deliberating after it returned an incomplete, and therefore legally defective, verdict relative to codefendant Evans. That contention is not preserved for our review because defendant did not join in the mistrial motion made by code-fendant Thompson or otherwise specifically object to the court’s

Finally, we conclude that defendant was not denied a fair trial by the cumulative effect of the alleged errors and that the sentence is not unduly harsh or severe.

Present — Whalen, P.J., Smith, Centra, Peradotto and Carni, JJ.