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

1083
KA 13-00302
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY MORALES, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered June 18, 2012. 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]). Defendant contends that the judgment should be reversed and the
indictment dismissed because he was improperly shackled and dressed in
jail attire during the grand jury proceeding. Defendant failed to
preserve that contention for our review (see People v Williams, 90
AD3d 1514, 1515, lv denied 18 NY3d 999) and, in any event, it lacks
merit. “[T]he evidence presented to the grand jury was overwhelming,
and it cannot be said that defendant’s . . . shackling [and jail
attire] amounted to an ‘instance[] where prosecutorial wrongdoing,
fraudulent conduct or errors potentially prejudice[d] the ultimate
decision reached by the [g]rand [j]ury’ such that dismissal of the
indictment is warranted” (People v Burroughs, 108 AD3d 1103, 1106, lv
denied 22 NY3d 995, quoting People v Huston, 88 NY2d 400, 409). We
reject defendant’s further contention that he received ineffective
assistance of counsel based on defense counsel’s failure to object to
the shackling and jail attire during the grand jury proceeding.
Viewing the evidence, the law and the circumstances of this case, in
totality and as of the time of the representation, we conclude that
defendant received meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).

     Defendant contends that the verdict is against the weight of the
evidence because the evidence established that he used force with the
intent of escaping from store security personnel, and not with the
                                 -2-                          1083
                                                         KA 13-00302

intent of retaining control of stolen property required for his
conviction of robbery under Penal Law § 160.15 (3). We reject that
contention. The evidence at trial established that defendant took a
pair of boots out of the store without paying for any merchandise, and
then defendant pulled out a knife when confronted by store security
personnel. “ ‘Given that defendant was in possession of the stolen
property while he was engaged in such use of force, the jury was
entitled to infer that his purpose in using force was to retain
control of the stolen property, not merely to escape’ ” (People v
Sullivan, 119 AD3d 1335, 1336, lv denied 25 NY3d 953). We therefore
conclude that, viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495).




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
