Opinion
165 KA 18-02100
03-26-2021
The PEOPLE of the State of New York, Respondent, v. Andre JONES, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN MARKARIAN, JANE I. YOON, OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN MARKARIAN, JANE I. YOON, OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of, inter alia, robbery in the third degree ( Penal Law § 160.05 ) and assault in the third degree (§ 120.00 [1]). We affirm.
The conviction of robbery in the third degree and assault in the third degree is supported by legally sufficient evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Moreover, viewing the evidence independently and in light of the elements of those crimes in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict convicting him of those crimes is against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Contrary to defendant's further contention, the fact that he was the only individual in the photo array with a tattoo and piercing did not make the photo array unduly suggestive; the tattoo and piercing were barely visible and thus did not "orient the viewer toward the defendant as the perpetrator" ( People v. Spence , 92 A.D.3d 905, 905, 938 N.Y.S.2d 622 [2d Dept. 2012] ; see People v. Clarke , 55 A.D.3d 1447, 1449, 865 N.Y.S.2d 817 [4th Dept. 2008], lv denied 11 N.Y.3d 923, 874 N.Y.S.2d 8, 902 N.E.2d 442 [2009] ; People v. Jamison , 291 A.D.2d 298, 299, 737 N.Y.S.2d 614 [1st Dept. 2002], lv denied 98 N.Y.2d 652, 745 N.Y.S.2d 510, 772 N.E.2d 613 [2002] ; see generally People v. Hoffman , 162 A.D.3d 1753, 1755, 79 N.Y.S.3d 824 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 119, 113 N.E.3d 953 [2018] ).
Defendant's absence from a particular sidebar conference did not violate his constitutional and statutory right to be present at all material stages of the trial. The trial judge stated on the record that the disputed sidebar involved scheduling and related issues, and it is well established that a criminal defendant has no constitutional or statutory right to personally attend sidebar conferences involving ministerial matters such as scheduling (see People v. Dokes , 79 N.Y.2d 656, 660, 584 N.Y.S.2d 761, 595 N.E.2d 836 [1992] ). Defendant's allegation that the trial judge lied in describing the sidebar is "entirely lacking in merit" ( Matter of Flanigan v. Smyth , 148 A.D.3d 1249, 1253, 50 N.Y.S.3d 572 [3d Dept. 2017], lv dismissed in part and denied in part 29 N.Y.3d 1046, 29 N.Y.3d 1046, 78 N.E.3d 1192 [2017] ).
To the extent it can be reviewed on direct appeal, defendant's ineffective assistance of counsel claim is without merit (see People v. Brunner , 16 N.Y.3d 820, 821, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011] ; People v. Nichols , 163 A.D.3d 39, 50, 78 N.Y.S.3d 590 [4th Dept. 2018] ; People v. Madison , 106 A.D.3d 1490, 1492, 964 N.Y.S.2d 820 [4th Dept. 2013] ; see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). Finally, the sentence is not unduly harsh or severe.