Opinion
1331 KA 13-00183.
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Andrew T. SPEARS, Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DeJOSEPH, JJ.
Opinion MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[3] ). The charge stemmed from an incident in which defendant stole money and cell phones from the victim and struck the victim in the head with a firearm.
Defendant contends that the conviction is not supported by legally sufficient evidence because the People failed to prove that the firearm was loaded, and because an unloaded firearm does not constitute a “dangerous instrument” within the meaning of Penal Law § 160.15(3). Defendant failed to preserve that contention for our review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, the contention lacks merit inasmuch as we previously have determined that a “gun ... used as a bludgeon” is a dangerous instrument (People v. Wooden, 275 A.D.2d 935, 935, 713 N.Y.S.2d 415, lv. denied 96 N.Y.2d 740, 722 N.Y.S.2d 807, 745 N.E.2d 1030 ; see § 10.00[13] ). Moreover, viewing the evidence in the light most favorable to the People, we conclude that “ ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of [robbery in the first degree] proved beyond a reasonable doubt’ ” (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ).
Defendant's related contention that his failure to preserve the above sufficiency contention should be excused because he was denied effective assistance of counsel is raised for the first time in his reply brief and is therefore not properly before us (see Matter of Sedita v. Sacha, 99 A.D.3d 1259, 1260, 951 N.Y.S.2d 459 ). In any event, we note that defense counsel's alleged failure to preserve a meritless issue for our review does not constitute ineffective assistance of counsel (see People v. Stachnik, 101 A.D.3d 1590, 1591, 956 N.Y.S.2d 777, lv. denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 ).
Defendant contends that his conviction is against the weight of the evidence because, inter alia, there was no evidence that he used an operable and loaded firearm, and because some of the People's witnesses were not credible. As we note above, the People were not required to prove that the firearm was operable or loaded in order to prove the dangerous instrument element of the crime (see Wooden, 275 A.D.2d at 935, 713 N.Y.S.2d 415 ), and we see no reason to disturb the jury's credibility determinations (see People v. Curry, 82 A.D.3d 1650, 1651, 921 N.Y.S.2d 420, lv. denied 17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803 ; People v. Gritzke, 292 A.D.2d 805, 805–806, 738 N.Y.S.2d 643, lv. denied 98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4 ). Viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we 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 ).
Defendant failed to preserve for our review his contention that the verdict is repugnant inasmuch as he failed to object to the alleged repugnancy of the verdict before the jury was discharged (see People v. Ali, 89 A.D.3d 1417, 1420, 932 N.Y.S.2d 616, lv. denied 18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 ; see also People v. Lurcock, 219 A.D.2d 797, 798, 631 N.Y.S.2d 959, lv. denied 88 N.Y.2d 881, 645 N.Y.S.2d 455, 668 N.E.2d 426 ). In any event, we conclude that the contention lacks merit (see People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 ; People v. McLaurin, 50 A.D.3d 1515, 1516, 856 N.Y.S.2d 773 ; see also People v. Clanton, 19 A.D.3d 1035, 1035–1036, 796 N.Y.S.2d 795, lv. denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156 ).
The sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that they are either unpreserved or lacking in merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.