PEOPLE v. ROBINSON

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Alfred C. ROBINSON, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  GORSKI, J.P., MARTOCHE, SMITH, GREEN, AND PINE, JJ. Bianco Law Office, Syracuse (Randi J. Bianco of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Audra Albright of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him, following a jury trial, of various crimes stemming from four related criminal transactions.   The first transaction involved the stabbing of a victim;  the second involved tampering with a witness to the stabbing;  the third involved tampering with the same witness on a different occasion and attempting to bribe him;  and the fourth involved the shooting and attempted murder of the stabbing victim the day before the trial on the stabbing incident was scheduled to begin.   We reject the contention of defendant that County Court erred in denying his motion to sever the counts for trial.   The offenses were joinable under CPL 200.20(2)(b), and thus the court lacked the statutory authority to grant defendant's motion for severance (see People v. Cornell, 17 A.D.3d 1010, 1011, 794 N.Y.S.2d 226, lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157;  see also People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083;  People v. Fontanez, 278 A.D.2d 933, 935, 718 N.Y.S.2d 541, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119).

 We reject the further contentions of defendant that the court erred in failing to conduct a Ventimiglia hearing;  that he was denied the right to be present at a material stage of the proceedings based on his absence from the sidebar conference concerning the Ventimiglia ruling;  and that the court erred in ruling that the testimony concerning an uncharged act of bribery allegedly committed by defendant was admissible.   Defendant has failed to establish that he was prejudiced by the fact that the Ventimiglia evidence was deemed admissible as a result of an offer of proof made to the court during the sidebar conference at trial.  “A defendant is not entitled to have such a [Ventimiglia ] hearing conducted before trial” (People v. Torres, 300 A.D.2d 46, 46, 750 N.Y.S.2d 498, lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289) and, furthermore, an offer of proof is acceptable where, as here, the defendant is aware of the proposed testimony (see People v. Himko, 239 A.D.2d 661, 662, 657 N.Y.S.2d 127, lv. denied 90 N.Y.2d 906, 663 N.Y.S.2d 518, 686 N.E.2d 230;  see also People v. Glass, 259 A.D.2d 989, 990, 688 N.Y.S.2d 361, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 508, 715 N.E.2d 511).

 Defendants generally have a right to be present during Ventimiglia hearings or sidebar conferences because such a Ventimiglia hearing or sidebar conference “is an ancillary hearing [or sidebar conference] at which a defendant has the right to be present when he may have ‘something valuable to contribute’ ” (People v. Rodriguez, 273 A.D.2d 415, 415-416, 710 N.Y.S.2d 907, lv. denied 95 N.Y.2d 907, 716 N.Y.S.2d 648, 739 N.E.2d 1153, 96 N.Y.2d 867, 730 N.Y.S.2d 41, 754 N.E.2d 1124;  see People v. Spotford, 85 N.Y.2d 593, 596-597, 627 N.Y.S.2d 295, 650 N.E.2d 1296).   We conclude that defendant's right to be present was not violated in this case because the only issue discussed was whether the testimony was more prejudicial than probative, and thus there was no potential for meaningful participation on defendant's part (see Rodriguez, 273 A.D.2d at 415-416, 710 N.Y.S.2d 907;  see also People v. Sanchez, 213 A.D.2d 566, 567-568, 625 N.Y.S.2d 47, lv. denied 86 N.Y.2d 784, 631 N.Y.S.2d 629, 655 N.E.2d 726;  cf. People v. Sanchez, 209 A.D.2d 1012, 619 N.Y.S.2d 897).   We further conclude that the evidence concerning defendant's alleged uncharged act of bribery was properly admitted inasmuch as it was relevant to the issue of consciousness of guilt, “thereby providing circumstantial corroborating evidence of identity” (People v. Jones, 276 A.D.2d 292, 292, 714 N.Y.S.2d 24, lv. denied 95 N.Y.2d 965, 722 N.Y.S.2d 482, 745 N.E.2d 403;  see also People v. Maddox, 272 A.D.2d 884, 885, 708 N.Y.S.2d 769, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370).

Defendant failed to preserve for our review his further contentions that the accomplice's testimony was incredible as a matter of law (see People v. Olivero, 289 A.D.2d 1082, 1083, 735 N.Y.S.2d 327, lv. denied 98 N.Y.2d 639, 744 N.Y.S.2d 768, 771 N.E.2d 841);  that the conviction of assault in the first degree (Penal Law § 120.10[1] ), tampering with a witness in the fourth degree (§ 215.10), tampering with a witness in the third degree (§ 215.11 [1] ) and bribing a witness (§ 215.00) is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919);  that People v. Cahill, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561 requires reversal of the conviction of attempted murder in the first degree (§§ 110.00, 125.27[1][a][v];  [b];  see CPL 470.05[2] );  and that the jury instructions were improper (see generally People v. Fagan, 24 A.D.3d 1185, 1187, 807 N.Y.S.2d 239).   We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Defendant failed to preserve for our review many of his challenges to the prosecutor's comments on summation (see People v. Lovullo, 5 A.D.3d 1013, 773 N.Y.S.2d 329, lv. denied 2 N.Y.3d 802, 781 N.Y.S.2d 301, 814 N.E.2d 473;  People v. Perez, 298 A.D.2d 935, 937, 747 N.Y.S.2d 654, lv. denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88).   In any event, we conclude that the comments by the prosecutor were either fair comment on the evidence or were in direct response to defense counsel's summation (see People v. Van Guilder, 282 A.D.2d 773, 774, 723 N.Y.S.2d 523, lv. denied 96 N.Y.2d 836, 729 N.Y.S.2d 457, 754 N.E.2d 217).   Contrary to the contention of defendant, his statement to the arresting officer was spontaneous and was therefore properly admitted at trial (see People v. Oglesby, 15 A.D.3d 888, 788 N.Y.S.2d 793, lv. denied 4 N.Y.3d 855, 797 N.Y.S.2d 429, 830 N.E.2d 328;  People v. Downey, 254 A.D.2d 794, 679 N.Y.S.2d 762, lv. denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451).   The remaining contentions of defendant concerning his statement to the arresting officer and the CPL 710.30 notice are raised for the first time on appeal and thus are not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, 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), and that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: