Opinion
KA 00-00228.
December 31, 2003.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered January 11, 2000, convicting defendant after a jury trial of robbery in the first degree and robbery in the second degree.
SALVATORE C. ADAMO, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, SCUDDER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of robbery in the first degree (Penal Law § 160.15) and robbery in the second degree (§ 160.10 [1]) for robbing a gasoline station/food mart with two other men. Defendant failed to preserve for our review his contentions that Supreme Court did not adequately state the reasons for a juror's disqualification and that defense counsel should have been permitted to ask questions of that juror to determine the scope of the juror's misconduct ( see People v. Albert, 85 N.Y.2d 851, 852; People v. Howze, 239 A.D.2d 895, 896, lv denied 90 N.Y.2d 940) . In addition, we note that the juror was disqualified upon defendant's own motion and with defendant's written consent ( see CPL 270.35), and thus defendant has waived those contentions ( see People v. Smith, 304 A.D.2d 364, 365, lv denied 100 N.Y.2d 566; People v. Woods, 238 A.D.2d 144, lv denied 90 N.Y.2d 912).
Defendant also failed to preserve for our review his contention concerning the court's charge on reasonable doubt and, in any event, that contention is lacking in merit ( see People v. Saunders, 283 A.D.2d 523, 523-524, lv denied 96 N.Y.2d 924; see also People v. Antommarchi, 80 N.Y.2d 247, 251-252, rearg denied 81 N.Y.2d 759). We further conclude that the court properly instructed the jury that defendant's flight was evidence of consciousness of guilt ( see People v. Murray, 305 A.D.2d 301, lv denied 100 N.Y.2d 623; People v. Henry, 270 A.D.2d 936, lv denied 95 N.Y.2d 905, 907; see generally People v. Yazum, 13 N.Y.2d 302, 304-305, rearg denied 15 N.Y.2d 679). Defendant failed to preserve for our review his additional contention that the conviction is not supported by legally sufficient evidence because the descriptions of defendant given by the People's witnesses were vague and contradictory ( see generally People v. Gray, 86 N.Y.2d 10, 19) and, in any event, that contention lacks merit ( see People v. Gray, 243 A.D.2d 648, lv denied 91 N.Y.2d 873) . Finally, we conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495), defendant received meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147), and the sentence is neither unduly harsh nor severe.