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

108
KA 10-01077
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON R. VOTRA, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MARK MOODY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Oswego County Court (Walter W.
Hafner, Jr., J.), rendered May 10, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree (two
counts).

     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 two counts of robbery in the second degree
(Penal Law § 160.10 [1]). We reject defendant’s contention that
County Court abused its discretion in denying his motion for recusal.
“Absent a legal disqualification under Judiciary Law § 14, a Trial
Judge is the sole arbiter of recusal . . . [and a] court’s decision in
this respect may not be overturned unless it was an abuse of
discretion” (People v Moreno, 70 NY2d 403, 405-406; see People v
Williams, 66 AD3d 1440, 1441-1442, lv denied 13 NY3d 911). Moreover,
the court was not obligated to recuse itself on the ground that it had
presided over the trial of defendant’s codefendant (see People v
Bennett, 238 AD2d 898, 899-900, lv denied 90 NY2d 890, cert denied 524
US 918).

     Defendant further contends that his indelible right to counsel
was violated because he was represented on unrelated charges at the
time he was questioned by the police with respect to the present
offense. We reject that contention. “[D]efendant was not in custody
on the unrelated charge[s] for which he had previously invoked his
right to counsel, and thus he did not have a derivative right to
counsel with respect to the [robbery] charge” (People v Mantor, 96
AD3d 1645, 1646, lv denied 19 NY3d 1103; see People v Steward, 88 NY2d
496, 500-502, rearg denied 88 NY2d 1018). Defendant’s contention that
the court abused its discretion in denying his request for an
                                 -2-                           108
                                                         KA 10-01077

adjournment of the trial in order to obtain a transcript of his
codefendant’s trial is without merit, particularly given that the
transcript might never be available due to the serious illness of the
court reporter who transcribed the codefendant’s trial. “ ‘The
court’s exercise of discretion in denying a request for an adjournment
will not be overturned absent a showing of prejudice’ ” (People v
Aikey, 94 AD3d 1485, 1486, lv denied 19 NY3d 956; see People v Arroyo,
161 AD2d 1127, 1127, lv denied 76 NY2d 852), which was not established
here.

     Defendant failed to preserve for our review his contention that
the conviction is not supported by legally sufficient evidence because
he failed to renew his motion for a trial order of dismissal after
presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied
97 NY2d 678). In any event, that contention is without merit.
Viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that the evidence is
legally sufficient to establish that defendant, acting with his
codefendant who was actually present, forcibly stole cocaine and money
from the respective victims (see People v Leggett, 101 AD3d 1694,
1694; see generally People v Danielson, 9 NY3d 342, 349; People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crime as charged to the jury (see Danielson, 9 NY3d at
349), we further conclude that, although a different result would not
have been unreasonable, the jury did not fail to give the conflicting
evidence the weight it should be accorded (see generally Bleakley, 69
NY2d at 495).

     We have reviewed defendant’s remaining contentions and conclude
that none requires modification or reversal of the judgment.




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
