People v. Andolina

• Decision Date: 24 April 2019
• Docket Number: 2016–03041,Ind .No. 53/15
• Citation: 96 N.Y.S.3d 883 (Mem),171 A.D.3d 1201
• Parties: The PEOPLE, etc., Respondent, v. Frank ANDOLINA, Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1201

96 N.Y.S.3d 883 (Mem)

The PEOPLE, etc., Respondent,

v.Frank ANDOLINA, Appellant.

2016–03041

Ind .No. 53/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 31, 2018

April 24, 2019

Paul Skip Laisure, New York, N.Y. (Jonathan Schoepp–Wong of counsel), for appellant.

Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart of counsel), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), rendered March 2, 2016, convicting him of attempted robbery in the first degree, attempted assault in the second degree, attempted criminal possession of stolen property in the fourth degree, criminal possession of a weapon in the fourth degree, and menacing in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish, beyond a reasonable doubt, his guilt of attempted robbery in the first degree and attempted assault in the second degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of those crimes and attempted criminal possession of stolen property in the fourth degree beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those three crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

We agree with the Supreme Court's denial of the defendant's request for a missing witness charge, as the defendant failed to make a prima facie showing that the witness would have had knowledge about a material issue (see People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; People v. Gomez, 138 A.D.3d 1017, 1018, 30 N.Y.S.3d 234 ; People v. Whitlock, 95 A.D.3d 909, 911, 943 N.Y.S.2d 227 ). In addition, the witness's testimony would have constituted hearsay (see People v. Cephas, 107 A.D.3d 821, 821, 966 N.Y.S.2d 684 ; People v. Watson, 220 A.D.2d 333, 333, 633 N.Y.S.2d 15 ; People v. Small, 201 A.D.2d 315, 316, 607 N.Y.S.2d 291 ).

The defendant's contention that the admission into evidence of excerpts from a recorded telephone call he made during his detention at Rikers Island Correctional Facility violated his right to counsel under the Federal and State constitutions is without merit (see People v. Johnson, 27 N.Y.3d 199, 205–206, 32 N.Y.S.3d 34, 51 N.E.3d 545 ; People v. Roberts, 139 A.D.3d 985, 986, 30 N.Y.S.3d 570 ). The defendant's alternative challenges to the admission into evidence of excerpts from that recorded telephone call are unpreserved for appellate review (see CPL 470.05[2] ; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Cesar, 131 A.D.3d 223, 227, 14 N.Y.S.3d 100 ; People v. Corker, 67 A.D.3d 926, 927, 888 N.Y.S.2d 418 ), and, in any event, without merit (see People v. Diaz, ––– N.Y.3d ––––, –––...