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

125
KA 13-02107
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL D. AGEE, DEFENDANT-APPELLANT.


ROBERT M. GRAFF, LOCKPORT, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered March 14, 2013. The judgment convicted
defendant, upon a jury verdict, of attempted robbery in the first
degree, robbery in the first degree, and robbery in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Niagara County Court for
further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict
of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15
[4]), robbery in the first degree (§ 160.15 [4]) and robbery in the
second degree (§ 160.10 [1]). The attempted robbery involved a store,
and the robbery counts involved a food delivery person two days later.

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to establish his intent with
respect to the attempted robbery count inasmuch as his motion for a
trial order of dismissal was not specifically directed at that issue
(see People v Gray, 86 NY2d 10, 19). In any event, that contention is
without merit. The evidence established that defendant entered the
store in the company of another person, approached an employee behind
a desk, claimed that he had gold to sell to the store, and called over
a second employee. When the second employee approached, defendant
pulled out a loaded revolver and pointed it at the second employee’s
face. When defendant turned to look at a third employee, the second
employee tackled defendant. A scuffle ensued, and defendant and his
companion fled. A witness testified that she saw defendant, who was
holding a gun, and his companion flee from the vicinity of the store
and enter a vehicle that was waiting with its engine running. There
was also evidence that, several times before the attempted robbery of
the store, defendant had tried to sell items to the store, but was
unsuccessful in doing so. In addition, on the day before the
attempted robbery, defendant entered the store and asked about its
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                                                         KA 13-02107

hours of business. Viewing the evidence in the light most favorable
to the People, as we must (see People v Contes, 60 NY2d 620, 621), we
conclude that there is a “ ‘valid line of reasoning and permissible
inferences [that] could lead a rational person’ ” to the conclusion
reached by the jury, i.e., that defendant intended to forcibly steal
property while displaying a firearm (People v Bleakley, 69 NY2d 490,
495; Penal Law § 160.15 [4]).

     Defendant further contends that the verdict with respect to his
conviction of the robbery counts is against the weight of the
evidence. Although there was conflicting testimony whether defendant
committed those crimes and, thus, “an acquittal would not have been
unreasonable” (People v Danielson, 9 NY3d 342, 348; see generally
Bleakley, 69 NY2d at 495), we conclude that, viewing the evidence in
light of the elements of those crimes as charged to the jury (see
Danielson, 9 NY3d at 349), the verdict is not against the weight of
the evidence (see generally Bleakley, 69 NY2d at 495).
“ ‘[R]esolution of issues of credibility, as well as the weight to be
accorded to the evidence presented, are primarily questions to be
determined by the jury’ ” (People v West, 118 AD3d 1450, 1451-1452, lv
denied 24 NY3d 1048), and we see no reason to disturb the jury’s
determination of those issues in this case.

     Defendant contends that the prosecutor violated County Court’s
Sandoval ruling by cross-examining him regarding an uncharged crime,
and that he was thereby deprived of a fair trial by prosecutorial
misconduct. That contention is without merit. The court struck the
testimony concerning the uncharged crime and instructed the jury to
disregard that testimony, and the jury is presumed to have followed
the court’s curative instruction (see People v Mims, 278 AD2d 822,
823, lv denied 96 NY2d 832; see also People v O’Neal, 38 AD3d 1305,
1307, lv denied 9 NY3d 848). We reject defendant’s contention that
cumulative errors deprived him of a fair trial (see West, 118 AD3d at
1452).

     We reject defendant’s further contention that he was denied due
process and effective assistance of counsel during the sentencing
proceeding when defense counsel declined to speak on his behalf. We
conclude that “no statement made by defense counsel at sentencing
‘would have had an impact on the sentence imposed’ ” (People v
Saladeen, 12 AD3d 1179, 1180, lv denied 4 NY3d 767).

     We agree with defendant, however, that the court erred in failing
to determine whether he should be afforded youthful offender status
(see People v Rudolph, 21 NY3d 497, 501). Defendant was convicted of
an armed felony offense, and the court therefore was required “to
determine on the record whether the defendant is an eligible youth by
considering the presence or absence of the factors set forth in CPL
720.10 (3) . . . [and] make such a determination on the record”
(People v Middlebrooks, ___ NY3d ___, ___ [June 11, 2015]). Inasmuch
as the court failed to do so here, we hold the case, reserve decision,
and remit the matter to County Court to make and state for the record
“a determination of whether defendant is a youthful offender”
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                                                         KA 13-02107

(Rudolph, 21 NY3d at 503).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
