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

254
KA 12-00121
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PERRY C. GRIGGS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

PERRY C. GRIGGS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered November 15, 2011. 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]). Although we agree with defendant that he should not have been
shackled when he testified before the grand jury, we conclude that
reversal on that basis is not warranted. As the People correctly
contend, the prosecutor’s cautionary instructions to the grand jury
were sufficient to dispel any potential prejudice to defendant (see
People v Burroughs, 108 AD3d 1103, 1106, lv denied 22 NY3d 995).
Defendant contends that the prosecutor engaged in misconduct during
the grand jury proceedings by failing to inform the members of the
grand jury that defendant had requested that a certain witness be
called. That contention is not preserved for our review inasmuch as
defendant failed to move to dismiss the indictment on that ground (see
People v Gordon, 277 AD2d 1053, 1053, lv denied 96 NY2d 759). In any
event, the record establishes that, under the circumstances presented
here, there was no “likelihood [or] possibility of prejudice” inasmuch
as the witness did not observe the criminal transaction at issue
(People v Adessa, 89 NY2d 677, 686). Defendant likewise failed to
preserve for our review his further contention that the prosecutor
engaged in misconduct by improperly cross-examining him before the
grand jury (see Gordon, 277 AD2d at 1053).

     We reject defendant’s contention that he was denied effective
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                                                         KA 12-00121

assistance of counsel because counsel failed to make a motion to
dismiss the indictment based upon the alleged defects in the grand
jury proceedings (see generally People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s further contention, the evidence at trial
is legally sufficient to establish that he forcibly stole property
from the victim while using a gun (see People v Gerena, 49 AD3d 1204,
1205-1206, lv denied 10 NY3d 958; see generally People v Bleakley, 69
NY2d 490, 495). Defendant asserts that he had a claim of right
defense based on good faith, and he contends that the evidence of
intent is legally insufficient when viewed in light of that defense.
Defendant’s contention is without merit, however, inasmuch as he
failed to present any evidence that the particular bills making up the
$30 he forcibly took from the victim “had any significance” to
defendant (see People v Pagan, 19 NY3d 91, 97-99). In any event,
fungible cash is not a chattel within the scope of a claim of right
defense based on good faith (see People v Reid, 69 NY2d 469, 476).
Viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495). The sentence is not unduly harsh
or severe.

     We have considered the remaining contentions of defendant in his
main and pro se supplemental briefs and conclude that none warrant
reversal or modification of the judgment.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
