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

49
KA 11-01083
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEREK WILLIAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered June 9, 2010. The appeal was held by
this Court by order entered January 3, 2014, decision was reserved and
the matter was remitted to the Supreme Court, Erie County, for further
proceedings (113 AD3d 1116). The proceedings were held and completed.

     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
[3]) and robbery in the second degree (§ 160.10 [2] [a]). We
previously held the case, reserved decision and remitted the matter to
Supreme Court for a reconstruction hearing to determine whether
defendant and his attorney were notified of the contents of a jury
note and what action, if any, the court took with respect to that note
(People v Williams, 113 AD3d 1116, 1117). During the reconstruction
hearing, the parties stipulated to the admission in evidence of the
jury note, and of the transcript of that part of the trial proceedings
concerning the jury note, which had been inadvertently excluded from
the original record on appeal. That evidence establishes that the
jury note consisted of a request for a readback of the entire
testimony of a witness, and that the court read the note into the
record in the presence of defendant and his attorney. Then, pursuant
to the court’s direction, the court reporter read back the requested
testimony. Inasmuch as the jury note requested only the readback of a
witness’s entire testimony, defendant was required to preserve his
challenge to the court’s response (see People v Gerrara, 88 AD3d 811,
812-813, lv denied 18 NY3d 957, cert denied ___ US ___, 133 S Ct 857;
People v Bryant, 82 AD3d 1114, 1114, lv denied 17 NY3d 792).
Defendant failed to do so, and his contention therefore is unpreserved
(see People v Alcide, 21 NY3d 687, 693-694). We decline to exercise
                                 -2-                            49
                                                         KA 11-01083

our power to review defendant’s contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).

     Defendant also failed to preserve for our review his challenge to
the legal sufficiency of the evidence with respect to whether he
possessed and used a dangerous instrument, and whether the victim
suffered a physical injury, inasmuch as his motion for a trial order
of dismissal was not “ ‘specifically directed’ at” those alleged
shortcomings in the evidence (People v Gray, 86 NY2d 10, 19). In any
event, defendant’s contention lacks merit, inasmuch as there is a
“valid line of reasoning and permissible inferences” that could lead
reasonable persons to the conclusion reached by the jury based on the
evidence presented at trial (People v Bleakley, 69 NY2d 490, 495).
Furthermore, 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 reject defendant’s contention that the verdict is contrary to
the weight of the evidence (see generally Bleakely, 69 NY2d at 495).

     Contrary to defendant’s further contention, “defense counsel’s
failure to make a specific motion for a trial order of dismissal at
the close of the People’s case [does] not constitute ineffective
assistance of counsel, inasmuch as any such motion would have had no
chance of success” (People v Horton, 79 AD3d 1614, 1616, lv denied 16
NY3d 859; see generally People v Stultz, 2 NY3d 277, 287, rearg denied
3 NY3d 702). With respect to defendant’s remaining allegations of
ineffective assistance of counsel, defendant failed to demonstrate a
lack of strategic or other legitimate explanations for defense
counsel’s alleged shortcomings (see People v McGee, 87 AD3d 1400,
1402-1403, affd 20 NY3d 513; People v Benevento, 91 NY2d 708,
712-713). We conclude that the evidence, the law and the
circumstances of this case, viewed in totality and as of the time of
the representation, establish that defendant received meaningful
representation (see generally People v Baldi, 54 NY2d 137, 147).

     Finally, defendant failed to preserve for our review his
contention that the sentence was vindictive (see People v Hurley, 75
NY2d 887, 888; People v Irrizarry, 37 AD3d 1082, 1083, lv denied 8
NY3d 946) and, in any event, that contention is also without merit
(see Irrizarry, 37 AD3d at 1083). It is well settled that “ ‘[t]he
mere fact that a sentence imposed after trial is greater than that
offered in connection with plea negotiations is not proof that
defendant was punished for asserting his right to trial’ ” (id.). The
sentence is not unduly harsh or severe.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
