Opinion
05-05-2017
The PEOPLE of the State of New York, Respondent, v. Donald C. FEDRICK, Jr., Defendant–Appellant.
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[3] ) and assault in the second degree (§ 120.05[2] ). Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that there is legally sufficient evidence to establish defendant's intent to commit a robbery. Defendant asked the victim about the amount of drugs that he was seeking to purchase, and the victim replied that he wanted $100 worth. Minutes later, defendant jabbed the victim in the back with a sharp instrument, told the victim to "give it up," and stabbed the victim when he tried to flee. The evidence of defendant's conduct, along with the surrounding circumstances, is legally sufficient to establish that he intended to rob the victim (see People v. Martinez, 22 N.Y.3d 551, 556–557, 568, 983 N.Y.S.2d 468, 6 N.E.3d 586 ; People v. Barbuto, 126 A.D.3d 1501, 1503, 6 N.Y.S.3d 369, lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 291, 36 N.E.3d 94 ).
The remainder of defendant's challenges to the sufficiency of the evidence are not preserved for our review inasmuch as defendant's motion for a trial order of dismissal was not " ‘specifically directed’ " at the grounds now raised on appeal (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). We reject defendant's contention that Supreme Court failed to provide defense counsel with meaningful notice of a jury note, in violation of the procedure set forth in (People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). The jury note was "ministerial in nature and therefore require[d] only a ministerial response" (People v. Nealon, 26 N.Y.3d 152, 161, 20 N.Y.S.3d 315, 41 N.E.3d 1130 ), and thus the O'Rama procedure was not implicated (see People v. Williams, 142 A.D.3d 1360, 1362, 38 N.Y.S.3d 342, lv. denied 28 N.Y.3d 1128, 51 N.Y.S.3d 24, 73 N.E.3d 364 ).
Defendant failed to preserve for our review his contention that the court erred in failing to instruct the jury to consider the counts against defendant separately from the counts against his codefendant at this joint trial, inasmuch as defendant failed to request a specific charge or object to the charge as given (see CPL 470.05[2] ; People v. Miller, 137 A.D.3d 1712, 1713, 28 N.Y.S.3d 207, lv. denied 27 N.Y.3d 1153, 39 N.Y.S.3d 387, 62 N.E.3d 127 ; People v. Gega, 74 A.D.3d 1229, 1231, 904 N.Y.S.2d 716, lv. denied 15 N.Y.3d 851, 909 N.Y.S.2d 29, 935 N.E.2d 821, reconsideration denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Defense counsel's failure to request a missing witness charge did not render his assistance ineffective (see People v. Myers, 87 A.D.3d 826, 828, 928 N.Y.S.2d 407, lv. denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 ).
We have considered defendant's remaining contentions and conclude that none requires reversal or modification of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.