         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
73
KA 10-02428
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JETONE JONES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered October 8, 2010. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree and robbery in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following Memorandum: On
appeal 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 [1]), defendant contends that reversal is required
because the record fails to establish whether Supreme Court provided a
meaningful response to the jury’s request for exhibits. Defendant did
not preserve that contention for our review and, in any event, there
is no evidence in the record that the court did not comply fully with
the jury’s request (see People v Snider, 49 AD3d 459, 459, lv denied
11 NY3d 795, citing People v Kisoon, 8 NY3d 129, 135; see generally
People v O’Rama, 78 NY2d 270, 276). Defendant’s suggestion to the
contrary is based solely on speculation.

     Defendant further contends that the conviction is not supported
by legally sufficient evidence. We reject that contention (see
generally People v Bleakley, 69 NY2d 490, 495). The evidence
established that the victim, who had known defendant for several
years, observed him seated with another man in a truck at a gas
station, drinking from a Grey Goose vodka bottle that was partially
wrapped in a paper bag. After a short conversation between defendant
and the victim, defendant exited the truck and struck the victim in
the head with a hard object. A struggle ensued and, while the victim
was on the ground, defendant or his companion stole cash, a cell phone
and a pack of Newport cigarettes from the victim’s pockets. Although
the victim did not see the object that defendant used to strike him,
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                                                         KA 10-02428

defendant believed that it was the vodka bottle. After defendant
drove away, the victim called 911 and reported the crime.

     Within 20 minutes, the police observed defendant and his
codefendant in a vehicle matching the description of the robbers’
vehicle provided by the victim. The vehicle was parked on a street
approximately a quarter of a mile from the crime scene. Upon
investigation, the police learned that the victim’s cell phone was in
the vehicle, along with a pack of Newport cigarettes and a bottle of
Grey Goose vodka. Another Grey Goose bottle was found on the grass
next to the vehicle. The victim then identified defendant in a prompt
showup procedure. While defendant was in a holding room at the police
station following his arrest, a police investigator heard defendant
saying to his codefendant, “Man, I should have thrown the phone out,”
or words to that effect.

     The above 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. Although the victim did not see defendant
strike him with a Grey Goose bottle, which constitutes a dangerous
instrument under these circumstances (see People v Joseph, 23 AD3d
174, 175, lv denied 6 NY3d 777; People v Soumik, 244 AD2d 584, 584, lv
denied 91 NY2d 897), the evidence is legally sufficient to establish
that defendant used the Grey Goose vodka bottle to attack defendant
from behind in order to steal his property (see People v Jacobs, 188
AD2d 897, 898, lv denied 81 NY2d 887; People v Carey, 180 AD2d 431,
432, lv denied 79 NY2d 998; cf. People v McBride, 203 AD2d 85, 86, lv
denied 83 NY2d 912). Further, 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 Bleakley, 69 NY2d 495).
Although a different verdict would not have been unreasonable, upon
independently “weigh[ing] the relative probative force of conflicting
testimony and the relative strength of conflicting inferences that may
be drawn from the testimony,” we conclude that the jury did not fail
to give the evidence the weight it should be accorded (People v Rayam,
94 NY2d 557, 560 [internal quotation marks omitted]).

     Defendant further contends that he was deprived of a fair trial
by various erroneous evidentiary rulings made by the court, some of
which were of constitutional dimension. Defendant failed to preserve
for our review his contentions with respect to the alleged errors (see
CPL 470.05 [2]). In any event, even assuming, arguendo, that the
court erred in one or more of its evidentiary rulings, we conclude
that “there is overwhelming proof of the defendant’s guilt and no
reasonable possibility that the error[s] might have contributed to the
defendant’s conviction” (People v Khan, 200 AD2d 129, 139-140, lv
denied 84 NY2d 937; see generally People v Crimmins, 36 NY2d 230,
237). We reject defendant’s further contention that he was denied
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147). We have reviewed defendant’s contention concerning venue
and conclude that it does not require reversal or modification of the
judgment.
                                 -3-                            73
                                                         KA 10-02428

     We agree with defendant, however, that the court erred in failing
to rule on those parts of his pretrial motion seeking inspection of
the grand jury minutes and seeking dismissal of the indictment on the
ground that the integrity of the grand jury proceedings was impaired
(see People v Spratley, 96 AD3d 1420, 1421). The record does not
reflect that the court ever ruled on defendant’s motion, and a failure
to rule on a motion cannot be deemed a denial thereof (see id.; see
also People v Concepcion, 17 NY3d 192, 197-198). We therefore hold
the case, reserve decision and remit the matter to Supreme Court to
decide those parts of defendant’s motion.




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
