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

344
KA 13-00800
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOEL S. BARBUTO, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered August 8, 2012. The judgment convicted
defendant, after a nonjury trial, of attempted robbery in the first
degree (two counts) and criminal possession of a weapon in the third
degree.

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

     Memorandum: On appeal from a judgment convicting him, following
a nonjury trial, of two counts of attempted robbery in the first
degree (Penal Law §§ 110.00, 160.15 [1], [3]) and one count of
criminal possession of a weapon in the third degree (§ 265.02 [1]),
defendant contends, inter alia, that the evidence is legally
insufficient to support the conviction. To the extent that defendant
has preserved that contention for our review, we conclude that it
lacks merit.

     Initially, defendant contends that the evidence of serious
physical injury is legally insufficient to support the conviction of
attempted robbery in the first degree under Penal Law § 160.15 (1).
The People presented evidence that, during the course of the attempted
robbery, defendant stabbed the victim in the back of the neck and the
back of the chest. As a result, the victim suffered a “moderate
size[d]” hemopneumothorax, which meant that both air and blood were
trapped inside the victim’s chest. The victim also had a collapsed
lung, “[s]o he did not have sufficient oxygen.” A chest tube was
inserted “[t]o evacuate blood and air so the lung [could] expand.”
Over the course of the first few hours of medical treatment, 20 ounces
of blood were drained from the victim’s chest. The People’s medical
expert testified that, if left untreated, the natural progression of
the victim’s hemopneumothorax could have resulted in death either from
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                                                         KA 13-00800

a tension pneumothorax, i.e., air trapped in the chest with a high
tension, or from the hemothorax which, if not drained, would cause a
significant amount of bleeding. Such evidence is legally sufficient
to establish serious physical injury (see People v Guillen, 65 AD3d
977, 977, lv denied 13 NY3d 939; People v Thompson, 224 AD2d 646, 646-
647, lv denied 88 NY2d 970; see also Matter of Eleda, 280 AD2d 405,
405; People v Wright, 105 AD2d 1088, 1088-1089, following remittal 124
AD2d 1015, lv denied 69 NY2d 751).

     Even assuming, arguendo, that defendant preserved for our review
his contentions that there is insufficient proof of his “intent to
cause a serious physical injury” and “that the proof also failed to
establish he had formed the specific intent to commit a robbery” (see
generally People v Gray, 86 NY2d 10, 19), we conclude that those
contentions lack merit. It is well established that “a robbery occurs
when a person forcibly steals property by the use of, or the
threatened use of, immediate physical force upon another person for
the purpose of compelling that person to deliver up property or to
prevent or overcome resistance to the taking” (People v Miller, 87
NY2d 211, 214). The “gradation of robbery offenses [is based on] the
presence of one of the enumerated ‘aggravating factors’ ” (id. at
215). The attempt to commit a robbery occurs when “[a] person . . .
fails to perpetrate the object crime, despite committing some act in
furtherance of that illegal end” (id.). The specific intent required
is the “intent to commit a robbery” (id. at 216), i.e. “to steal”
(People v De Jesus, 123 AD2d 563, 564, lv denied 69 NY2d 745), not the
intent to commit one of the enumerated aggravating factors (see
Miller, 87 NY2d at 216-217). Thus, the People were not required to
establish that defendant had the specific intent to cause a serious
physical injury.

     With respect to the specific intent to commit a robbery, we
conclude that the evidence of such intent may “ ‘be inferred from . .
. defendant’s conduct and the surrounding circumstances’ ” (People v
Bracey, 41 NY2d 296, 301, rearg denied 41 NY2d 1010). Viewing the
evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that there is legally
sufficient evidence to establish defendant’s specific intent to commit
a robbery. Defendant and the codefendant approached the victim;
defendant used a knife to stab the victim; and, immediately
thereafter, the codefendant said to the victim “give us all your
money.”

     The remainder of defendant’s challenges to the sufficiency of the
evidence are not preserved for our review inasmuch as defendant’s
motion for a trial order of dismissal was not “ ‘specifically
directed’ ” to those grounds now raised on appeal (Gray, 86 NY2d at
19). 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]). Viewing the evidence in light of the elements of the crimes in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see People v Bleakley, 69 NY2d 490, 495).
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                                                         KA 13-00800

     Defendant further contends that he was denied effective
assistance of counsel based on numerous alleged shortcomings of
defense counsel. Viewing the evidence, the law and the circumstances
of this case in totality and as of the time of the representation, we
conclude that defendant received meaningful representation (see People
v Baldi, 54 NY2d 137, 147). With respect to defendant’s contention
that defense counsel should have called a medical expert to testify
for the defense, “[i]t is well established that, ‘[t]o prevail on a
claim of ineffective assistance of counsel, it is incumbent on
defendant to demonstrate the absence of strategic or other legitimate
explanations for counsel’s failure to’ call such a witness” (People v
Burgos, 90 AD3d 1670, 1670, lv denied 19 NY3d 862, quoting People v
Rivera, 71 NY2d 705, 709). Defendant failed to do so. In any event,
to the extent that defendant’s contention is “based upon defense
counsel’s alleged failure to consult experts or to conduct an
investigation with respect to the medical . . . evidence presented . .
. , it involves matters outside the record on appeal . . . [and] must
be raised by way of a motion pursuant to CPL article 440” (People v
Ocasio, 81 AD3d 1469, 1470, lv denied 16 NY3d 898, cert denied ___ US
___, 132 S Ct 318). We further conclude that “it is apparent from
[defense counsel’s] thorough cross-examination of prosecution
witnesses and [her] overall performance that [she] had adequately
prepared for trial” (People v Adair, 84 AD3d 1752, 1754, lv denied 17
NY3d 812; see People v Washington, 122 AD3d 1406, 1406).

     Defendant contends that defense counsel was ineffective in
failing to move for severance in order to eliminate a Bruton issue
(see Bruton v United States, 391 US 123). The record establishes that
counsel was aware of the issue and, for strategic reasons, opted
against the motion for severance. Defendant thus failed to establish
“ ‘the absence of strategic or other legitimate explanations’ for
[defense] counsel’s” failure to move for severance (People v
Benevento, 91 NY2d 708, 712; see People v Reid, 71 AD3d 699, 700, lv
denied 15 NY3d 756; People v Shell, 152 AD2d 609, 610, lv denied 74
NY2d 899; but see People v Jeannot, 59 AD3d 737, 737, lv denied 12
NY3d 916).

     With respect to defendant’s final challenge to the effectiveness
of defense counsel, we note that “[t]here is nothing in the record on
appeal that would raise a colorable issue of ineffective assistance of
trial counsel based on defendant’s waiver of a jury trial. If
defendant can demonstrate facts, not recited in the record, that would
raise such issue, that issue can be pursued by motion pursuant to CPL
440.10” (People v Barnes, 143 AD2d 499, 499-500; see People v Olson,
35 AD3d 890, 890-891, affd 9 NY3d 968).

     Contrary to defendant’s contention, the sentence that County
Court imposed on him as a second violent felony offender is not unduly
harsh or severe. The People have correctly conceded, however, that
“the presentence report has not been redacted as the court ordered at
sentencing, and therefore it must be redacted to correct the
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                                                        KA 13-00800

oversight” (People v Howard, 124 AD3d 1350, 1351).




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
