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

1226
KA 12-01612
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EMARIO C. ALLEN, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered August 28, 2012. The judgment convicted
defendant, upon a jury verdict, of assault in the first degree,
attempted assault in the first degree, and robbery in the first 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 assault in the first degree (Penal Law § 120.10
[1]), attempted assault in the first degree (§§ 110.00, 120.10 [1]),
and two counts of robbery in the first degree (§ 160.15 [1], [2]).
The conviction arises out of an incident during which defendant shot
at one man and missed, and shortly thereafter shot and robbed that
man’s companion. Contrary to defendant’s contention, 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 of attempted assault in the first degree. 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 further conclude that
the verdict on that count is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Supreme Court properly refused to redact from defendant’s tape
recorded statement to the police the interrogating police officer’s
questions and comments (see People v Voymas, 39 AD3d 1182, 1184, lv
denied 9 NY3d 852) and, in any event, “the . . . court’s limiting
instruction sufficed to avert any potential prejudice” (People v
Jackson, 178 AD2d 438, 439). The court also properly denied
defendant’s Batson challenge to the prosecutor’s peremptory strike of
an African-American prospective juror. The prosecutor explained that
                                 -2-                          1226
                                                         KA 12-01612

he exercised that strike based upon, inter alia, the prospective
juror’s acquaintance with a prosecution witness, and the court
properly accepted that explanation as race-neutral and nonpretextual
(see People v Gant, 291 AD2d 912, 912, lv denied 98 NY2d 675). The
record supports the court’s determination, following a Cardona hearing
(see People v Cardona, 41 NY2d 333), that a prosecution witness was
not acting as an agent of the government when defendant made
inculpatory statements to him while they were incarcerated (see People
v Young, 100 AD3d 1427, 1427-1428, lv denied 20 NY3d 1105).

     Defendant contends that the court erred in failing to give the
limiting instruction required by CPL 310.20 (2) when it provided the
jury with an annotated verdict sheet distinguishing the two counts of
robbery in the first degree (see People v McCloud, 121 AD3d 1286,
___). Contrary to defendant’s further contention, the court’s failure
to give the required instruction does not constitute a mode of
proceedings error “that may be reviewed on appeal as a matter of law
even in the absence of a timely objection” (People v Wheeler, 257 AD2d
673, 674, lv denied 93 NY2d 930). Inasmuch as defendant failed to
make such an objection, the contention is not preserved for our review
(see CPL 470.05 [2]; McCloud, 121 AD3d at ___), and we decline to
exercise our power to review his contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). Contrary to
defendant’s further contention that the court failed to rule on the
entirety of his pretrial motion to dismiss the indictment, the record
establishes that the court denied the motion “in all respects” (see
People v Dixon, 113 AD3d 1104, 1105, lv denied 23 NY3d 962; cf. People
v Spratley, 96 AD3d 1420, 1421). Finally, consecutive sentences were
authorized for the separate offenses committed against each victim
(see People v Ramirez, 89 NY2d 444, 451), and the sentence imposed is
not unduly harsh or severe.




Entered:   November 21, 2014                   Frances E. Cafarell
                                               Clerk of the Court
