Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Jason R. VOTRA, Defendant–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Mark Moody of Counsel), for Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Defendant–Appellant. Gregory S. Oakes, District Attorney, Oswego (Mark Moody of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of robbery in the second degree (Penal Law § 160.10[1] ). We rejectdefendant's contention that County Court abused its discretion in denying his motion for recusal. “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal ... [and a] court's decision in this respect may not be overturned unless it was an abuse of discretion” ( People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200;see People v. Williams, 66 A.D.3d 1440, 1441–1442, 886 N.Y.S.2d 534,lv. denied13 N.Y.3d 911, 895 N.Y.S.2d 326, 922 N.E.2d 915). Moreover, the court was not obligated to recuse itself on the ground that it had presided over the trial of defendant's codefendant ( see People v. Bennett, 238 A.D.2d 898, 899–900, 660 N.Y.S.2d 772,lv. denied90 N.Y.2d 890, 662 N.Y.S.2d 433, 685 N.E.2d 214,cert. denied524 U.S. 918, 118 S.Ct. 2302, 141 L.Ed.2d 161).
Defendant further contends that his indelible right to counsel was violated because he was represented on unrelated charges at the time he was questioned by the police with respect to the present offense. We reject that contention. “[D]efendant was not in custody on the unrelated charge[s] for which he had previously invoked his right to counsel, and thus he did not have a derivative right to counsel with respect to the [robbery] charge” ( People v. Mantor, 96 A.D.3d 1645, 1646, 946 N.Y.S.2d 807,lv. denied19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820;see People v. Steward, 88 N.Y.2d 496, 500–502, 646 N.Y.S.2d 974, 670 N.E.2d 214,rearg. denied88 N.Y.2d 1018, 649 N.Y.S.2d 384, 672 N.E.2d 610). Defendant's contention that the court abused its discretion in denying his request for an adjournment of the trial in order to obtain a transcript of his codefendant's trial is without merit, particularly given that the transcript might never be available due to the serious illness of the court reporter who transcribed the codefendant's trial. “ ‘The court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice’ ” ( People v. Aikey, 94 A.D.3d 1485, 1486, 943 N.Y.S.2d 702,lv. denied19 N.Y.3d 956, 950 N.Y.S.2d 108, 973 N.E.2d 206;see People v. Arroyo, 161 A.D.2d 1127, 1127, 555 N.Y.S.2d 499,lv. denied76 N.Y.2d 852, 560 N.Y.S.2d 991, 561 N.E.2d 891), which was not established here.
Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence because he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg.denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, that contention is without merit. Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence is legally sufficient to establish that defendant, acting with his codefendant who was actually present, forcibly stole cocaine and money from the respective victims ( see People v. Leggett, 101 A.D.3d 1694, 1694, 956 N.Y.S.2d 385;see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). 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 further conclude that, although a different result would not have been unreasonable, the jury did not fail to give the conflicting evidence the weight it should be accorded ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We have reviewed defendant's remaining contentions and conclude that none requires modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.