Opinion
2017–12377 Ind. No. 2033/15
05-01-2019
The PEOPLE, etc., Respondent, v. Robert OGLETREE, Appellant.
Forchelli Deegan Terrana, LLP, Uniondale, N.Y. (Michael A. Ciaffa of counsel), for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Amanda Manning of counsel), for respondent.
Forchelli Deegan Terrana, LLP, Uniondale, N.Y. (Michael A. Ciaffa of counsel), for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Amanda Manning of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Nassau County (Howard E. Sturim, J.), rendered October 13, 2017, convicting him of robbery in the third degree and petit larceny, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was observed shoplifting from a department store by an asset protection detective. According to the asset protection detective, when he asked the defendant to return the merchandise, the defendant "motioned towards his waistband on the right side of his body as if he had some type of weapon or firearm," "stated that he had a gun" and said "I suggest you get inside before I shoot." A jury found the defendant guilty of robbery in the third degree and petit larceny.
Contrary to the defendant's contention, the Supreme Court did not err in submitting the charge of robbery in the first degree to the jury. There was legally sufficient evidence to support the submission of this charge to the jury based on testimony and video evidence that the defendant threatened to shoot the asset protection detective while gesturing as if he had a gun (see People v. Lopez, 73 N.Y.2d 214, 219, 538 N.Y.S.2d 788, 535 N.E.2d 1328 ; People v. Haney, 162 A.D.2d 613, 556 N.Y.S.2d 939 ). Additionally, the conviction of robbery in the third degree was not against the weight of the evidence because a jury could have reasonably concluded that the defendant used the threat of force to retain the stolen property based on the same evidence (see People v. Carr–El, 99 N.Y.2d 546, 547, 754 N.Y.S.2d 198, 784 N.E.2d 71 ).
The defendant's contention that the Supreme Court should have discharged a juror who appeared to be sleeping at certain times during the trial was waived, as the defendant expressly refused to consent to have the juror replaced.The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and, thus, constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
LEVENTHAL, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.