Opinion
106432
06-18-2015
The PEOPLE of the State of New York, Respondent, v. Elizabeth D. MINOR, Appellant.
Pamela B. Bleiwas, Ithaca, for appellant. Gwen Wilkinson, District Attorney, Ithaca (Gary U. Surdell of counsel), for respondent.
Pamela B. Bleiwas, Ithaca, for appellant.
Gwen Wilkinson, District Attorney, Ithaca (Gary U. Surdell of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY and ROSE, JJ.
Opinion
LAHTINEN, J.P.Appeal from a judgment of the County Court of Tompkins County (Rossiter, J.), rendered July 12, 2013, upon a verdict convicting defendant of the crimes of robbery in the second degree (two counts), petit larceny and conspiracy in the fourth degree.
Defendant and codefendant Jameel C. Melton entered the victim's apartment in Tompkins County, where Melton pointed what appeared to be a pistol at the victim's head while defendant gathered cash and various other items belonging to the victim. Both were soon arrested and charged with numerous crimes as a result of their conduct. Defendant's pretrial motion to sever her trial from that of Melton was denied. A joint trial ensued resulting in a jury finding defendant guilty of robbery in the first degree, robbery in the second degree, petit larceny and conspiracy in the fourth degree. Thereafter, County Court granted defendant's CPL 330.30 motion, which was not opposed by the People, to reduce the conviction for robbery in the first degree to robbery in the second degree. She was sentenced to concurrent terms on all counts, with the longest sentences of seven years in prison plus postrelease supervision on the two robbery counts. Defendant appeals.
The verdict was not against the weight of the evidence. In weight of the evidence analysis, where a different verdict would not have been unreasonable, we “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citations omitted]; accord People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; see People v. Kancharla, 23 N.Y.3d 294, 303, 991 N.Y.S.2d 1, 14 N.E.3d 354 [2014] ). Evidence at trial included that the victim and defendant had met on the prior evening and returned to the victim's apartment where the victim paid defendant for sex. Before the transaction was completed, defendant left the apartment but told the victim that she would return. When defendant returned, the victim opened the door to let her in the apartment, and Melton and an unidentified female then entered behind her. Melton demanded to know where the victim kept his money and, when he denied having money in the apartment, Melton pointed a gun—later identified as an unloaded air gun—at the victim's head. The victim then disclosed where the keys to his safe were located; defendant retrieved the keys, opened the safe and removed $175. Additional items of the victim's personal property were placed in pillowcases by defendant. Defendant and Melton then fled; the unidentified female who had accompanied them had left earlier.
Defendant asserts that the weight of the evidence establishes that she acted under duress (see Penal Law § 40.00 ). However, for tactical reasons, defendant had not pursued this defense at trial nor requested a jury charge regarding duress because of concern that pursuing such a defense would have opened the door for the People to present evidence of defendant's criminal history (see People v. Calvano, 30 N.Y.2d 199, 205, 331 N.Y.S.2d 430, 282 N.E.2d 322 [1972] ; People v. Urbaez, 219 A.D.2d 568, 568, 631 N.Y.S.2d 356 [1995], lv. denied 87 N.Y.2d 908, 641 N.Y.S.2d 238, 663 N.E.2d 1268 [1995] ). In any event, the evidence that Melton pointed his gun in defendant's general direction for a “split second” when giving her directions and that she briefly apologized to the victim when leaving does not convince us that the weight of the evidence established duress. After viewing the proof in a neutral light while giving deference to the jury's credibility determinations (see e.g. People v. Rivera, 124 A.D.3d 1070, 1073–1074, 2 N.Y.S.3d 279 [2015] ; People v. Lloyd, 118 A.D.3d 1117, 1121, 987 N.Y.S.2d 672 [2014], lv. denied 25 N.Y.3d 951, 7 N.Y.S.3d 280, 30 N.E.3d 171 [2015] ), we are unpersuaded that the jury's verdict was against the weight of the evidence as to any of the crimes of which defendant was convicted.
County Court did not err in denying defendant's motion for a separate trial from Melton. A court, “in its discretion for good cause shown, may grant a separate trial based upon its determination that a joint trial will yield undue prejudice to a defendant” (People v. Melendez, 285 A.D.2d 819, 822, 727 N.Y.S.2d 773 [2001], lv. denied 97 N.Y.2d 731, 740 N.Y.S.2d 704, 767 N.E.2d 161 [2002] ; see People v. Thompson, 79 A.D.3d 1269, 1271–1272, 912 N.Y.S.2d 326 [2010] ). Where the “proof against both defendants is supplied to a great extent by the same evidence, only the most cogent reasons warrant a severance” (People v. Melendez, 285 A.D.2d at 822, 727 N.Y.S.2d 773 ; accord People v. Mahboubian, 74 N.Y.2d 174, 183, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ). Initially, we note that the basis asserted for severance by defendant on appeal was not advanced before County Court and thus is not properly before us (see People v. Hall, 48 A.D.3d 1032, 1033, 849 N.Y.S.2d 743 [2008], lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ). In any event, the record does not reveal undue prejudice to defendant in a joint trial, and County Court did not abuse its discretion in denying defendant's motion for severance (see e.g. People v. Thompson, 79 A.D.3d at 1271–1272, 912 N.Y.S.2d 326 ).
ORDERED that the judgment is affirmed.
McCARTHY, GARRY and ROSE, JJ., concur.