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

328
KA 09-01371
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORDELL A. ROBINSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered June 25, 2009. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree (two
counts) and assault in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts of robbery in the second degree
(Penal Law § 160.10 [1], [2] [a]) and one count of assault in the
second degree (§ 120.05 [6]). According to the evidence presented at
trial, two passengers in a vehicle, one of whom was defendant, exited
the vehicle, approached the victim, a pedestrian, and knocked her cell
phone from her hand. In addition, one of them forcibly ripped her
purse from her arm, injuring her. The victim observed her two
assailants struggle to re-enter the backseat of the vehicle, and she
also observed three other individuals in the vehicle and memorized the
license plate. Within minutes, she called the police and described
the vehicle and its occupants. Within an hour, the police stopped the
vehicle and conducted a showup identification procedure. The victim
identified defendant and another person as the individuals who stole
her purse, and she also identified the driver of the vehicle.
Defendant and the driver were eventually tried jointly and found
guilty of all counts.

     Viewing the evidence in light of the elements of the crimes 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 People v Bleakley, 69 NY2d 490, 495). “Although a
different result would not have been unreasonable, the jury was in the
best position to assess the credibility of the witnesses and, on this
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                                                         KA 09-01371

record, it cannot be said that the jury failed to give the evidence
the weight it should be accorded” (People v Orta, 12 AD3d 1147, 1147,
lv denied 4 NY3d 801).

     We reject defendant’s further contention that County Court erred
in denying his request that the court require two potential defense
witnesses to appear before it to assert their Fifth Amendment rights.
The court was informed by counsel for those two potential witnesses,
who were occupants of the vehicle, that they would invoke their Fifth
Amendment rights if called to testify. Thus, although the customary
practice is to have a witness appear with counsel to enable the court
to make an inquiry on the record outside the presence of the jury (see
e.g. People v Bradford, 300 AD2d 685, 686, lv denied 99 NY2d 612),
here there was no reason to bring the witnesses before the court for
such an inquiry (see generally People v Savinon, 100 NY2d 192, 199 n
7; People v Macana, 84 NY2d 173, 178-179).

     We further reject defendant’s contention that the court erred in
denying his request to call three additional witnesses to testify
regarding a declaration against penal interest made by one of those
two potential defense witnesses, i.e., a statement in which that
person admitted that he was in fact the purse snatcher. Contrary to
defendant’s contention, People v Concepcion (17 NY3d 192) does not
constrain our review of this issue inasmuch as the court’s reasoning
for its rulings regarding those three witnesses was broader than
defendant contends. We conclude that the court properly exercised its
discretion in refusing to allow defendant to call those three
witnesses, having permitted two other witnesses to testify regarding
that declaration against penal interest; such a determination
“involves a delicate balance of diverse factors and is entrusted to
the sound judgment of the trial court, which is aptly suited to weigh
the circumstances surrounding the declaration and the evidence used to
bolster its reliability” (People v Settles, 46 NY2d 154, 169).

     Defendant failed to preserve for our review his contention that
the conviction is not supported by legally sufficient evidence (see
People v Gray, 86 NY2d 10, 19), and in any event that contention lacks
merit. We conclude that “there is [a] valid line of reasoning and
permissible inferences which could lead a rational person to the
conclusion reached by the jury on the basis of the evidence at trial”
(Bleakley, 69 NY2d at 495). Contrary to defendant’s further
contention, the court did not err in responding to a note from the
jury during its deliberations. The court’s response “addressed the
jury’s inquiry and was a proper statement of the law” (People v Banks,
74 AD3d 1783, 1784, lv denied 17 NY3d 857). Additionally, the court
did not err in denying defendant’s request for a cross-racial
identification charge (see generally People v German, 45 AD3d 861,
861, lv denied 9 NY3d 1034).

     Finally, defendant failed to preserve for our review his
contention that he was penalized for exercising his right to a jury
trial inasmuch as he failed to raise that contention at the time of
sentencing (see People v Motzer, 96 AD3d 1635, 1636, lv denied 19 NY3d
1104; People v Stubinger, 87 AD3d 1316, 1317, lv denied 18 NY3d 862).
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                                                        KA 09-01371

In any event, the record does not support defendant’s contention (see
Stubinger, 87 AD3d at 1317).




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
