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

1331
KA 13-00183
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDREW T. SPEARS, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, 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
(Christopher J. Burns, J.), rendered January 23, 2013. 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
[3]). The charge stemmed from an incident in which defendant stole
money and cell phones from the victim and struck the victim in the
head with a firearm.

     Defendant contends that the conviction is not supported by
legally sufficient evidence because the People failed to prove that
the firearm was loaded, and because an unloaded firearm does not
constitute a “dangerous instrument” within the meaning of Penal Law §
160.15 (3). Defendant failed to preserve that contention for our
review (see People v Gray, 86 NY2d 10, 19). In any event, the
contention lacks merit inasmuch as we previously have determined that
a “gun . . . used as a bludgeon” is a dangerous instrument (People v
Wooden, 275 AD2d 935, 935, lv denied 96 NY2d 740; see § 10.00 [13]).
Moreover, viewing the evidence in the light most favorable to the
People, we conclude that “ ‘there is a valid line of reasoning and
permissible inferences from which a rational jury could have found the
elements of [robbery in the first degree] proved beyond a reasonable
doubt’ ” (People v Danielson, 9 NY3d 342, 349).

     Defendant’s related contention that his failure to preserve the
above sufficiency contention should be excused because he was denied
effective assistance of counsel is raised for the first time in his
reply brief and is therefore not properly before us (see Matter of
                                 -2-                          1331
                                                         KA 13-00183

Sedita v Sacha, 99 AD3d 1259, 1260). In any event, we note that
defense counsel’s alleged failure to preserve a meritless issue for
our review does not constitute ineffective assistance of counsel (see
People v Stachnik, 101 AD3d 1590, 1591, lv denied 20 NY3d 1104).

     Defendant contends that his conviction is against the weight of
the evidence because, inter alia, there was no evidence that he used
an operable and loaded firearm, and because some of the People’s
witnesses were not credible. As we note above, the People were not
required to prove that the firearm was operable or loaded in order to
prove the dangerous instrument element of the crime (see Wooden, 275
AD2d at 935), and we see no reason to disturb the jury’s credibility
determinations (see People v Curry, 82 AD3d 1650, 1651, lv denied 17
NY3d 805; People v Gritzke, 292 AD2d 805, 805-806, lv denied 98 NY2d
697). Viewing the evidence in light of the elements of the crime as
charged to the jury (see Danielson, 9 NY3d at 349), we conclude that
the verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to preserve for our review his contention that
the verdict is repugnant inasmuch as he failed to object to the
alleged repugnancy of the verdict before the jury was discharged (see
People v Ali, 89 AD3d 1417, 1420, lv denied 18 NY3d 922; see also
People v Lurcock, 219 AD2d 797, 798, lv denied 88 NY2d 881). In any
event, we conclude that the contention lacks merit (see People v
Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039; People v McLaurin, 50
AD3d 1515, 1516; see also People v Clanton, 19 AD3d 1035, 1035-1036,
lv denied 5 NY3d 804).

     The sentence is not unduly harsh or severe. We have reviewed
defendant’s remaining contentions and conclude that they are either
unpreserved or lacking in merit.




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