PEOPLE v. SHEARIN (2019)

Judgment, Supreme Court, New York County (Gilbert C. Hong, J.), rendered October 13, 2016, as amended November 4, 2016, convicting defendant, after a jury trial, of robbery in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to an aggregate term of three to six years, unanimously affirmed.

Defendant's claim that the evidence failed to establish the physical injury element of robbery in the second degree was rendered moot by his acquittal of that charge (see People v. Flores, 284 A.D.2d 123, 725 N.Y.S.2d 545 [1st Dept. 2001], lv denied 98 N.Y.2d 710, 749 N.Y.S.2d 7, 778 N.E.2d 558 [2002];  People v. Reynoso, 262 A.D.2d 102, 103, 693 N.Y.S.2d 521 [1st Dept. 1999], lv denied 93 N.Y.2d 1025, 697 N.Y.S.2d 584, 719 N.E.2d 945 [1999];  see also People v. Brown, 83 N.Y.2d 791, 794, 610 N.Y.S.2d 956, 632 N.E.2d 1279 [1994] ).  Defendant requested submission of the lesser offense of robbery in the third degree, and he failed to preserve his argument that he was prejudiced by the court's denial of his motion to dismiss the greater charge in that it left him an inadequate opportunity to prepare a defense to the lesser charge.  We decline to review this claim in the interest of justice.  As an alternative holding, we find that the record does not establish any prejudice.  Furthermore, although the only robbery charge in the indictment was second-degree robbery, defendant could not have prevented the submission of the lesser included offense (see CPL 300.30[1] ) even if the trial court had accepted his argument.

Defendant failed to preserve, and ultimately waived, his challenge to the court's purported failure to give him an opportunity to exercise a peremptory challenge to a prospective juror, who was seated as the twelfth juror (see People v. Moreno, 15 A.D.3d 225, 788 N.Y.S.2d 847 [1st Dept. 2005], lv denied 5 N.Y.3d 792, 801 N.Y.S.2d 813, 835 N.E.2d 673 [2005] ), and we decline to review it in the interest of justice.  Unlike the situation in prior rounds of jury selection, the court, after asking whether either side had a cause challenge, did not ask if either side had a peremptory challenge, and concluded “we have a jury.”  Defense counsel did not object at that time.  Instead, shortly afterwards, defense counsel confirmed that he was satisfied with the composition of the jury, thus waiving the claims he now raises, and defendant's claim that there was a mode of proceedings error exempt from preservation requirements is without merit.  In any case, the record does not support defendant's claim that the court failed to “permit” him to peremptorily challenge the twelfth juror (see CPL 270.15[2] ).  Moreover, it gave counsel a final opportunity to voice any objections or exercise a challenge when it asked whether everyone was “on the same page” before swearing in the jury.

We perceive no basis for reducing the sentence.