         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
131
KA 07-00936
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL R. SULLI, DEFENDANT-APPELLANT.


PHILLIP R. HURWITZ, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered March 28, 2007. 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 judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, following
a jury trial, of robbery in the first degree (Penal Law § 160.15 [3])
and robbery in the second degree (§ 160.10 [3]), defendant contends
that County Court erred in denying his request for a circumstantial
evidence charge. We reject that contention inasmuch as the People
presented direct evidence in the form of defendant’s admissions of
guilt (see People v Casper, 42 AD3d 887, 888, lv denied 9 NY3d 990).
We reject defendant’s further contention that the court erred in
denying his request for a missing witness charge. The witness in
question, i.e., the victim, indicated through her attorney that she
would assert her Fifth Amendment privilege against self-incrimination
if she were called to testify. We thus conclude that the witness
would not have been expected to testify favorably to the party that
did not call her, i.e., the People and that she was “unavailable” to
the People because she had refused to testify on Fifth Amendment
grounds (see People v Gonzalez, 68 NY2d 424, 427; see generally People
v Savinon, 100 NY2d 192, 198). The court also properly denied
defendant’s request to charge petit larceny (§ 155.25) as a lesser
included offense of both robbery in the first degree and robbery in
the second degree. There was no reasonable view of the evidence to
support a finding that defendant committed petit larceny, i.e., stole
property, but that he did not forcibly steal a vehicle or that he did
not forcibly steal a vehicle without using or threatening the use of a
dangerous instrument (see § 160.10 [3]; § 160.15 [3]; see generally
People v Glover, 57 NY2d 61, 63).
                                 -2-                           131
                                                         KA 07-00936

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to establish that defendant used
or threatened to use the vehicle in question as a dangerous instrument
(see People v Gray, 86 NY2d 10, 19). We reject defendant’s further
contention that the evidence is legally insufficient to establish the
element of forcible stealing. The evidence at trial established a
valid line of reasoning and permissible inferences that could lead a
rational person to conclude that defendant forcibly stole the vehicle
(see generally People v Bleakley, 69 NY2d 490, 495). Viewing the
evidence in light of the elements of the crime of robbery in the first
degree as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict with respect
to that count is against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     Defendant contends that he was denied a fair trial based on
prosecutorial misconduct when, during summation, the prosecutor
misstated the evidence by indicating that the voice of the victim
could be heard on the recording of one of the 911 calls. That
contention is not preserved for our review because defendant failed to
object to the allegedly improper comment during summation (see People
v Balls, 69 NY2d 641). Defendant’s further contention that the court
erred in admitting in evidence the recording of the second 911 call as
an excited utterance is also not preserved for our review (see CPL
470.05 [2]). We decline to review those contentions as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). We
reject defendant’s contention that he was denied his right to
confrontation based on the admission in evidence of the second 911
call inasmuch as the statements contained in that call were not
testimonial in nature (see People v Nunez, 51 AD3d 1398, 1400, lv
denied 11 NY3d 792).

     The court’s Sandoval ruling did not constitute an abuse of
discretion (see People v Nichols, 302 AD2d 953, lv denied 99 NY2d
657). Finally, the sentence is not unduly harsh or severe.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
