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

6
KA 14-01499
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARK THOMPSON, ALSO KNOWN AS MARK DAY,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J.
PUNCH OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered August 4, 2014. 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]). The conviction arises out of an incident in which defendant and
a codefendant robbed the victim at gunpoint and left the scene in a
vehicle driven by another codefendant (see People v Evans, 142 AD3d
1291, 1291). Following a high-speed police chase, defendant and the
codefendants fled from the vehicle on foot and were apprehended. The
victim’s property was recovered in the vehicle and on defendant’s
person, and the victim identified defendant and one of the
codefendants in showup identification procedures but testified that he
was unable to identify them at trial. The weapon used in the robbery
was recovered along the route traveled by the suspects’ vehicle, near
several bullets and a magazine.

     Defendant contends that Supreme Court failed to rule on the part
of his omnibus motion seeking to suppress, inter alia, identification
testimony and physical evidence on the ground that he was unlawfully
detained, and that the matter should therefore be remitted for a
ruling on that issue. Although we agree with defendant that the court
failed to address the legality of his detention in its suppression
decision, we conclude that he abandoned that challenge by failing to
seek a ruling on that part of his motion and failing to object at
trial to testimony about the showup identification and the recovery of
physical evidence from his person (see People v Linder, 114 AD3d 1200,
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                                                         KA 14-01499

1200-1201, lv denied 23 NY3d 1022; People v Anderson, 52 AD3d 1320,
1320-1321, lv denied 11 NY3d 733). In any event, we conclude that the
circumstances in which a police officer encountered defendant in the
aftermath of the vehicle chase gave rise to at least a reasonable
suspicion that defendant had been one of the occupants of the vehicle
and a participant in the robbery (see People v Butler, 81 AD3d 484,
485, lv denied 16 NY3d 893; see also People v Carr, 99 AD3d 1173,
1175, lv denied 20 NY3d 1010).

     We reject defendant’s contention that the court erred in denying
his motion for a mistrial when the jury initially returned an
incomplete verdict with respect to a codefendant. The decision
whether to grant a mistrial is a matter for the discretion of the
trial court (see People v Ortiz, 54 NY2d 288, 292; People v Rodriguez,
112 AD3d 1344, 1345), and we conclude that the court acted within its
discretion in denying the motion and instead directing the jury to
resume deliberations (see CPL 310.50 [2]). Contrary to defendant’s
contentions, the initial verdict was not “tantamount to a hung jury”
(see generally People v Stephens, 63 AD3d 624, 624, lv denied 13 NY3d
800), and the verdict sheet was not confusing, in view of the jury
instructions on the affirmative defense to robbery in the first degree
under Penal Law § 160.15 (4) that the weapon allegedly displayed was
not loaded and operable (see generally People v Dombrowski-Bove, 300
AD2d 1122, 1124).

      By making only a general motion for a trial order of dismissal,
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). In any event, we conclude that the evidence,
viewed in the light most favorable to the People (see People v Contes,
60 NY2d 620, 621), is legally sufficient to support the conviction
(see generally People v Bleakley, 69 NY2d 490, 495). With respect to
the affirmative defense to robbery in the first degree, the presence
of ammunition in the vicinity of the weapon when it was recovered
supports a reasonable inference that the weapon was “loaded at the
time of the crime, but unloaded at the time it was recovered” (People
v Williams, 15 AD3d 244, 245, lv denied 5 NY3d 771; see People v
Barrington, 34 AD3d 341, 342, lv denied 8 NY3d 878). 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 reject defendant’s
further contention that the verdict is against the weight of the
evidence (see Bleakley, 69 NY2d at 495), including with respect to the
affirmative defense (see People v Brown, 81 AD3d 499, 500, lv denied
17 NY3d 792; Williams, 15 AD3d at 245; cf. People v Moody, 278 AD2d
862, 862-863). “The challenges defendant raises on appeal to [the
victim’s] credibility were matters for the jury to determine, and we
see no reason to disturb its verdict” (People v Brooks, 139 AD3d 1391,
1393; see People v Vargas, 60 AD3d 1236, 1238-1239, lv denied 13 NY3d
750).

     Contrary to defendant’s further contention, his Sixth Amendment
right of confrontation was not violated by the admission in evidence
of statements that a codefendant made to a police officer and in
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                                                         KA 14-01499

recorded jail telephone calls. The statements incriminated defendant,
if at all, only in light of other evidence produced at trial (see
People v Maschio, 117 AD3d 1234, 1235; People v Sutton, 71 AD3d 1396,
1397, lv denied 15 NY3d 778; cf. People v Johnson, 27 NY3d 60, 67-72),
and the court directed the jury to consider the statements only
against the codefendant who made them. Under such circumstances, a
codefendant is “not ‘considered to be a witness “against” a
defendant’ ” within the meaning of the Sixth Amendment (People v
Pagan, 87 AD3d 1181, 1183, lv denied 18 NY3d 885, quoting Richardson v
Marsh, 481 US 200, 206).

      Finally, we reject defendant’s contention that the court erred in
permitting an assistant district attorney who had recently prosecuted
a case against the victim to testify that the victim had not received
any benefit in that case in exchange for his testimony at defendant’s
trial. Even assuming, arguendo, that such testimony constituted
bolstering, we conclude that it was properly admitted after defendant
suggested through cross-examination of the victim that his testimony
may have been motivated by the possibility of favorable treatment in
his own case (see People v Santana, 55 AD3d 1338, 1339, lv denied 12
NY3d 762; People v Hayes, 226 AD2d 1055, 1055-1056, lv denied 88 NY2d
936).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
