PEOPLE v. BLUME

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The PEOPLE of the State of New York, Respondent, v. Donald BLUME, Appellant.

Decided: February 09, 2012

Before: PETERS, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ. Aaron A. Louridas, Delmar, for appellant, and appellant pro se. James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered May 5, 2010, upon a verdict convicting defendant of the crimes of robbery in the second degree (two counts) and criminal possession of a weapon in the second degree.

On the evening of April 26, 2009, defendant and codefendants Frederick Pagan and Lynn Thomas, together with Toni DiLauro, Angelo Rivera and Ryan Ward, gathered at an apartment in the Village of Liberty, Sullivan County. According to DiLauro and Thomas, who are sisters, the conversation soon turned to how the group, some of whom already had partaken of drugs and alcohol earlier that day, might acquire additional quantities of crack cocaine. After Thomas nixed an initial plan to rob a local drug dealer, she contacted a cab driver she knew (hereinafter the victim) and asked him to meet her in a particular parking lot with change for a $100 bill. According to DiLauro, the revised plan was for Thomas—a prostitute—to have sex with the victim in order to obtain the funds needed to purchase additional drugs.

The group piled into Rivera's vehicle and proceeded to the appointed location. While en route, DiLauro testified, defendant questioned the need for Thomas to have sex with the victim, stating, “[W]hy does she have to do this, we could just rob him.”1 Upon arrival, defendant, Pagan, Thomas and Ward exited the vehicle and walked to the agreed-upon meeting spot, with Ward stopping along the way at his father's apartment to retrieve three hooded sweatshirts. Rivera and DiLauro remained with the vehicle. Thomas testified that upon rendezvousing with the victim, she and Pagan climbed into the back seat of the cab. As the victim turned to speak with the duo, defendant appeared and opened the driver-side door, and he and Pagan began punching the victim. As the struggle continued, the victim pulled out his loaded handgun and pointed it at defendant.2 The gun failed to fire, however, and defendant eventually wrestled the gun away from the victim. In the interim, Ward entered the cab through the passenger-side door and joined the fray. Ultimately, the victim was pulled from the cab and pistol-whipped, after which defendant, Pagan, Thomas and Ward fled with the victim's wallet, cash and gun.3

Upon returning to Rivera's vehicle, the group-now minus Rivera, who left and walked to a friend's house—departed the scene. According to DiLauro and Thomas, defendant was waving the victim's gun around the car and bragging about his role in the attack.4 After stopping briefly to dispose of the hooded sweatshirts in a wooded area, the group proceeded to a local gas station, where defendant was captured on video surveillance purchasing gasoline.

Defendant, Pagan and Thomas subsequently were indicted and charged with robbery in the second degree (two counts) and criminal possession of a weapon in the second degree. Thomas pleaded guilty and testified against defendant and Pagan, who were tried jointly—albeit with separate juries. Defendant was convicted as charged and thereafter sentenced to an aggregate prison term of 22 years followed by a period of postrelease supervision.5 Defendant now appeals.

We affirm. The various arguments raised by defendant are either unpreserved for our review or lacking in merit. As to the asserted Wade violation, County Court indicated that it would not be conducting a Wade hearing with respect to defendant because, as noted previously, the victim was unable to identify defendant as one of his attackers and the People did not intend to pursue any such identification testimony at trial. Defendant voiced no objection to County Court's ruling and, therefore, his present argument is unpreserved for our review (see CPL 470.05[2]; People v. Belle, 74 AD3d 1477, 1480 [2010], lv denied 15 NY3d 918 [2010] ). Moreover, we discern no circumstances that would warrant the exercise of our interest of justice jurisdiction in this regard.

With respect to the corroboration issue, the crux of defendant's argument on this point is that County Court erred in failing to charge the jury that DiLauro and Rivera were accomplices as a matter of law. In response to a request made by Pagan's counsel, County Court charged the jury that Thomas was an accomplice as a matter of law and submitted for the jury's consideration whether DiLauro and Rivera were accomplices as a matter of fact. A review of the transcript reveals that defendant neither objected to the proposed charge, requested an alternative charge, filed an exception to the charge ultimately given nor made an additional request to charge. Accordingly, defendant failed to preserve this issue for our review (see People v. Wright, 81 AD3d 1161, 1162 [2011], lv denied 17 NY3d 803 [2011]; People v. Kennedy, 78 AD3d 1233, 1236 [2010], lv denied 16 NY3d 896 [2011]; People v. Tabb, 12 AD3d 951, 953 [2004], lv denied 4 NY3d 768 [2005]; People Hill, 236 A.D.2d 799, 800 [1997], lv denied 89 N.Y.2d 1036 [1997]; People v. Woodham, 158 A.D.2d 494, 495 [1990] ). To the extent that defendant's submissions may be read as challenging the legal sufficiency of the evidence supporting the verdict, we need note only that defendant did not move to dismiss the indictment until after the jury rendered its verdict, thereby failing to preserve this issue for our review (see People v. Doyle, 48 AD3d 961, 962 [2008], lv denied 10 NY3d 862 [2008]; People v. Gathers, 47 AD3d 959, 959 [2008], lv denied 10 NY3d 863 [2008]; compare People v. Lee, 80 AD3d 877, 878 n 1 [2011] [specific motion to dismiss made at the close of the People's case and renewed after the defendant presented evidence], lvs denied 16 NY3d 832, 833, 834 [2011] ).6 Similarly, defendant's claim that the verdict was against the weight of the evidence was raised for the first time in his reply brief and, as such, is not properly before us (see People v. Davenport, 58 AD3d 892, 894 [2009], lv denied 12 NY3d 782 [2009] ).

Finally, given the violent nature of the attack upon the victim, we reject defendant's assertion that the sentence imposed is harsh or excessive. Moreover, we note that defendant's reliance upon Penal Law § 70.25(3) is misplaced, as that provision deals with alternative definite sentences imposed under Penal Law § 70.00(4) for class D and E felonies, not-as is the case here-determinate sentences imposed under Penal Law § 70.02(b) for class C violent felonies. Defendant's remaining contentions, including his claimed Brady violation, have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.  Thomas disputes this account, contending instead that the plan-from the outset-was to rob the victim.

2.  The victim testified that the weapon in question was a .357 Magnum revolver, which was loaded with .38 caliber bullets.

3.  Of the three actual attackers (defendant, Pagan and Ward), the victim was able to identify only Pagan. The victim also was able to identify Thomas from prior encounters with her.

4.  DiLauro testified that defendant removed the shells from the gun, and authorities later would recover a single .38 caliber shell from the floor of Rivera's vehicle.

5.  Pagan also was convicted as charged and has filed a notice of appeal.

6.  Although defense counsel admittedly “reserve[d]” on the motion for a trial order of dismissal with County Court's blessing (and arguably at its behest), neither the parties nor the trial court may fashion or acquiesce to a procedure that effectively contravenes the preservation requirement or otherwise undermines the rationale therefor (see generally People v. Gray, 86 N.Y.2d 10, 20–21 [1995] ). In any event, if defendant's various corroboration claims were properly before us, we would find them to be lacking in merit.

EGAN JR., J.

PETERS, J.P., MALONE JR., STEIN and GARRY, JJ., concur.

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