        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

670
KA 15-01140
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CARL EVANS, DEFENDANT-APPELLANT.


ANDREW C. LOTEMPIO, BUFFALO, FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered August 4, 2014. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law § 160.15
[4]). Defendant’s two codefendants robbed the victim at gunpoint
outside a liquor store and then got into an SUV parked a block away.
Following a high-speed police chase, defendant and the codefendants
fled from the SUV on foot, and the police recovered the victim’s
stolen property from the SUV.

     Viewing the evidence in the light most favorable to the People,
as we must (see People v Contes, 60 NY2d 620, 621), we reject
defendant’s contention that the evidence is legally insufficient to
establish his accessorial liability for the robbery, i.e., that he
intentionally aided the codefendants and “shared a ‘community of
purpose’ ” with them (People v Allah, 71 NY2d 830, 832; see Penal Law
§ 20.00; People v Scott, 25 NY3d 1107, 1109-1110). The People
presented evidence that the SUV was registered to a woman at the same
address identified by defendant as his home address; that defendant
was using his mother’s vehicle on the night of the robbery; that
defendant fled from the driver’s side of the SUV when it stopped; and
that defendant told the police that he and the codefendants had left a
party together “to get more liquor” and that he had been “the
designated driver,” although he denied that he had in fact been
driving. Based on that evidence, we conclude that there is a valid
line of reasoning and permissible inferences, including the inference
of consciousness of guilt arising from defendant’s flight from police
with the codefendants (see People v Bacote, 107 AD3d 641, 642, lv
                                 -2-                           670
                                                         KA 15-01140

denied 21 NY3d 1072; People v Bido, 235 AD2d 288, 289, lv denied 89
NY2d 1009; see generally People v Ficarotta, 91 NY2d 244, 249-250),
enabling the jury to determine beyond a reasonable doubt both that
defendant was the driver of the SUV at all relevant times and that he
was a knowing accomplice to the robbery rather than a mere bystander
or an accessory after the fact (see People v Jackson, 44 NY2d 935,
937; People v Keitt, 42 NY2d 926, 927; People v DeNormand, 1 AD3d
1047, 1048, lv denied 1 NY3d 626; cf. People v Robinson, 90 AD2d 249,
250-251, affd 60 NY2d 982; see generally People v Cabey, 85 NY2d 417,
420-422).

     Defendant’s further contention that Supreme Court should have
severed his trial from that of the codefendants is not preserved for
our review because he did not move for a severance (see People v
Woods, 284 AD2d 995, 996, lv denied 96 NY2d 926). Indeed, no party
sought a severance, and the court therefore lacked the authority to
grant defendant a separate trial (see Matter of Brown v Schulman, 245
AD2d 561, 562, lv denied 91 NY2d 814). Finally, we conclude that
defendant has not established that he was denied effective assistance
of counsel (see generally People v Benevento, 91 NY2d 708, 712-713).
In particular, defendant has not shown the absence of strategic or
other legitimate explanations for the absence of a severance motion
(see People v McGee, 20 NY3d 513, 520-521; People v Barbaran, 118 AD2d
578, 580, lv denied 67 NY2d 1050), or for counsel’s choice of defense
theories (see People v Ross, 209 AD2d 730, 730, lv denied 84 NY2d
1038; see generally People v Satterfield, 66 NY2d 796, 799-800).




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
