People v. Sulli

• Decision Date: 10 February 2011
• Citation: 81 A.D.3d 1309,916 N.Y.S.2d 389
• Parties: The PEOPLE of the State of New York, Respondent, v. Paul R. SULLI, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 389 81 A.D.3d 1309 The PEOPLE of the State of New York, Respondent, v. Paul R. SULLI, Defendant-Appellant. Supreme Court, Appellate Division, Fourth Department, New York. Feb. 10, 2011.

Phillip R. Hurwitz, Rochester, for Defendant-Appellant.

Michael C. Green, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

On appeal from a judgment convicting him, following a jury trial, of robbery in the first degree (Penal Law § 160.15[3] ) and robbery in the second degree (§ 160.10[3] ), defendant contends that County Court erred in denying his request for a circumstantial evidence charge. We reject that contention inasmuch as the People presented direct evidence in the form of defendant's admissionsof guilt ( see People v. Casper, 42 A.D.3d 887, 888, 839 N.Y.S.2d 397, lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023). We reject defendant's further contention that the court erred in denying his request for a missing witness charge. The witness in question, i.e., the victim, indicated through her attorney that she would assert her Fifth Amendment privilege against self-incrimination if she were called to testify. We thus conclude that the witness would not have been expected to testify favorably to the party that did not call her, i.e., the People and that she was "unavailable" to the People because she had refused to testify on Fifth Amendment grounds ( see People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583; see generally People v. Savinon, 100 N.Y.2d 192, 198, 761 N.Y.S.2d 144, 791 N.E.2d 401). The court also properly denied defendant's request to charge petit larceny (§ 155.25) as a lesser included offense of both robbery in the first degree and robbery in the second degree. There was no reasonable view of the evidence to support a finding that defendant committed petit larceny, i.e., stole property, but that he did not forcibly steal a vehicle or that he did not forcibly steal a vehicle without using or threatening the use of a dangerous instrument ( see § 160.10[3]; § 160.15[3]; see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish that defendant used or threatened to use the vehicle in question as a dangerous instrument ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). We reject defendant's further contention that the evidence is legally insufficient to establish the element of forcible stealing. The evidence at trial established a valid line of reasoning and permissible inferences that could lead a rational person to conclude that defendant forcibly stole the vehicle ( see generally 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 of robbery in the first degree as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention that the verdict with respect to that count is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Defendant contends that he was denied a fair trial based on prosecutorial misconduct when, during summation, the prosecutor misstated the evidence by indicating that the voice of the victim could be heard on the recording of one of the 911 calls. That contention is not preserved for our review because defendant failed to object to the allegedly improper comment during summation ( see People v. Balls, 69 N.Y.2d 641, 511 N.Y.S.2d 586, 503 N.E.2d 1017). Defendant's further...