                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 19, 2017                   105760
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

RAHCIEF COLLIER,
                    Appellant.
________________________________


Calendar Date:   October 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Clark and Aarons, JJ.

                             __________


     Kathryn S. Dell, Troy, for appellant, and appellant pro se.

      Joel E. Abelove, District Attorney, Troy (Vincent J.
O'Neill of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Rensselaer
County (Ceresia, J.), rendered December 6, 2012, upon a verdict
convicting defendant of the crimes of assault in the first
degree, robbery in the first degree (four counts), attempted
robbery in the first degree (two counts), criminal use of a
firearm in the first degree and criminal use of a firearm in the
second degree.

      On October 3, 2011, defendant, along with his accomplice,
devised a plan to rob the male victim, who he lured to a
specified location under the pretext that he wished to purchase
drugs. The male victim arrived at the prearranged location with
the female victim and, as defendant and his accomplice attempted
to carry out the plan, the male victim was shot in the arm by a
                              -2-                105760

sawed-off shotgun directed at him by defendant. Defendant was
subsequently indicted on the charges of attempted murder in the
second degree, assault in the first degree, robbery in the first
degree (four counts), attempted robbery in the first degree (two
counts), criminal use of a firearm in the first degree, criminal
use of a firearm in the second degree and the manufacture,
transport, disposition and defacement of weapons and dangerous
instruments and appliances. The matter proceeded to a jury trial
and, upon defendant's motion for a trial order of dismissal at
the close of proof, County Court dismissed the charge of
manufacture, transport, disposition and defacement of weapons and
dangerous instruments and appliances. The case was thereafter
submitted to the jury, which ultimately returned a verdict
acquitting defendant of attempted murder in the second degree,
but finding him guilty of the remaining charges. Defendant was
sentenced to an aggregate prison term of 20 years, followed by
five years of postrelease supervision. Defendant appeals, and we
affirm.

      Initially, defendant argues that the police lacked probable
cause to arrest him and, thus, that his statements to police
should have been suppressed. While defendant made a general,
pretrial request for a Dunaway hearing, only a combined
Huntley/Wade hearing was held and it is unclear from the record
whether defendant withdrew his request for a Dunaway hearing or
whether that branch of his omnibus motion was overlooked by
County Court. Nevertheless, by either failing to pursue his
application for a Dunaway hearing or alert the court that it had
overlooked his request, defendant abandoned such request, thereby
rendering unpreserved his appellate contention that the police
lacked probable cause to arrest him (see CPL 470.05 [2]; People v
Bigelow, 68 AD3d 1127, 1128 [2009], lv denied 14 NY3d 797 [2010];
People v Harley, 253 AD2d 699, 699 [1998], lv denied 92 NY2d 1032
[1998]), and we decline to take corrective action in the interest
of justice.

      Defendant also argues that his convictions are not
supported by legally sufficient evidence and are against the
weight of the evidence. However, defendant preserved his legal
sufficiency argument only with respect to his convictions for
attempted robbery in the first degree, as he failed to raise – in
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his motion for a trial order of dismissal at the close of proof –
any protests "specifically directed" at the proof supporting his
other convictions (People v Gray, 86 NY2d 10, 19 [1995]; see
People v Keschner, 25 NY3d 704, 721 [2015]). Nevertheless, we
must, as part of our weight of the evidence review, evaluate
whether the elements of each crime were proven beyond a
reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007];
People v Hamilton, 133 AD3d 1090, 1091 [2015]). In that regard,
where, as here, a different verdict would not have been
unreasonable, we, "like the trier of fact below, weigh the
relative probative force of conflicting testimony and the
relative strength of conflicting inferences that may be drawn
from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987]
[internal quotation marks and citations omitted]; see People v
Thiel, 134 AD3d 1237, 1238 [2015], lv denied 27 NY3d 1156
[2016]).

      As pertinent here, a person is guilty of robbery in the
first degree when he or she "forcibly steals property and when,
in the course of the commission of the crime . . ., he [or she]
. . . [c]auses serious physical injury to any person who is not a
participant in the crime[] or . . . [i]s armed with a deadly
weapon" (Penal Law § 160.15 [1], [2]). Additionally, a person is
guilty of attempted robbery in the first degree when, with intent
to forcibly steal property, he or she engages in conduct which
tends to do so, and when, in the course of the attempted
commission of the crime, he or she causes serious physical injury
to a nonparticipant in the crime or is armed with a deadly weapon
(see Penal Law §§ 110.00; 160.15 [1], [2]; People v Knox, 137
AD3d 1330, 1330-1331 [2016], lv denied 27 NY3d 1070 [2016]).
Further, a person is guilty of assault in the first degree when,
"[w]ith intent to cause serious physical injury to another
person, he [or she] causes such injury to such person . . . by
means of a deadly weapon or a dangerous instrument" (Penal Law
§ 120.10 [1]). Finally, a person is guilty of criminal use of a
firearm in the first degree and criminal use of a firearm in
second degree when he or she commits class B and C violent felony
offenses (see Penal Law § 70.02 [1] [a], [b]) and possesses a
loaded, deadly weapon from which a shot "readily capable of
producing death or other serious injury may be discharged" (Penal
Law §§ 265.08 [1]; 265.09 [1] [a]).
                               -4-                105760

      Here, the trial evidence established that, on the evening
in question, defendant and his accomplice formulated a plan to
rob the male victim, who defendant admitted in a statement to
police he knew to sell drugs and carry cash. In his written
statement to police, which was admitted into evidence,1 defendant
stated that the male victim had "disrespected" him the night
before and that he arranged the meeting so that he and his
accomplice could rob the male victim. Defendant stated that,
after obtaining a gun with a "sawed[-]off" barrel, he approached
the victims' vehicle and pointed the gun at the male victim,
while his accomplice pulled the female victim out of the vehicle,
entered the vehicle, began going through the male victim's
pockets and asked the male victim, "Where's the money at?"
Defendant asserted that his accomplice and the male victim were
"tusslin[g]" inside the vehicle, while he hit the male victim
with the wooden part of his gun. Defendant stated that the male
victim grabbed the gun, and he "stepped back[,] . . . gave the
gun a yank and the gun went off."

      Defendant's statements to police were sufficiently
corroborated by the testimony of both victims, as well as the
responding police officers (see CPL 60.50). The male victim
testified that, after defendant contacted him to buy drugs, he
and the female victim arrived at the prearranged location and
were thereafter approached on opposite sides of the vehicle by
defendant and his accomplice. He asserted that defendant
approached the driver side of the vehicle – where he was seated –
with what appeared to be a "cut[-]down" shotgun, placed the gun
roughly six inches from his head and demanded that he give
defendant "everything." Both victims testified that defendant's
accomplice forcibly pulled the female victim from the passenger
side of the vehicle. The male victim stated that defendant's
accomplice thereafter leaned inside the vehicle, started grabbing
at his possessions, including his cell phone, "money in [his]
sweatshirt pocket" and his keys, and successfully pulled his
house key and key chain from the set of keys in the ignition.
The male victim further testified that defendant hit him in the


     1
        A video of defendant's police interview was also admitted
into evidence.
                              -5-                105760

head with the gun as he was trying to defend himself and that, as
he had his "hand about in front of his face and his elbow bent
pointing up," he was shot. As established by physician
testimony, three surgeries were required to address the male
victim's gunshot wound, the first of which repaired life-
threatening damage to his arteries and nerves.

      The female victim consistently testified that defendant and
his accomplice approached the vehicle on both sides and were
yelling "[g]ive me your stuff." She stated that defendant's
accomplice "grabbed" her out of the car and took her cell phone,
at which point she ran and hid. She testified that she heard a
gunshot and witnessed the male victim bleeding from his arm. A
responding police officer testified that he heard "a loud bang,"
came upon the male victim bleeding profusely from his arm and
observed a set of keys several yards from the crime scene.
Another responding police officer testified that he observed
damage to and blood on the vehicle.

      Defendant argues that his convictions of attempted robbery
in the first degree were not supported by legally sufficient
evidence because the proof failed to establish that either he or
his accomplice came close to forcibly stealing cash from the
victims. We disagree. By all accounts, including defendant's
own statements to police, defendant and his accomplice demanded
that the male victim turn over his money. While the male victim
testified that he had over $4,200 in cash locked in the center
console of the vehicle and that he refused to turn this money
over, he also testified that defendant's accomplice came in
through the passenger side of the vehicle and grabbed at the
console and the money in his sweatshirt pocket. Viewing the
evidence in the light most favorable to the People (see People v
Griffin, 122 AD3d 1068, 1070 [2014], lv denied 25 NY3d 1164
[2015]; People v Horton, 106 AD3d 1192, 1194 [2013], lv denied 21
NY3d 1016 [2013]), and particularly considering that the demands
for money occurred while defendant's accomplice was inside the
vehicle grabbing at the male victim's possessions and while
defendant was pointing a sawed-off shotgun at the male victim and
striking him with it, we are satisfied that a valid line of
reasoning and permissible inferences existed from which a
rational jury could have concluded that, with intent to forcibly
                              -6-                105760

steal property, defendant – independently and through the actions
of his accomplice (see Penal Law § 20.00) – engaged in conduct
which tended to do so while armed with a deadly weapon and caused
serious physical injury to the male victim in the process (see
People v Djanie, 31 AD3d 887, 887 [2006], lv denied 7 NY3d 866
[2006]; see generally People v Miller, 87 NY2d 211, 216 [1995];
compare People v Mateo, 13 AD3d 987, 988 [2004], lv denied 5 NY3d
883 [2005]). Viewing the evidence in a neutral light and
according deference to the jury's credibility assessments, we are
similarly satisfied that defendant's convictions for attempted
robbery in the first degree are not against the weight of the
evidence (see People v Lewis, 99 AD3d 1104, 1104-1105 [2012], lv
denied 21 NY3d 1017 [2013]).

      As for defendant's remaining convictions, the trial
evidence established that defendant and his accomplice planned
the robbery, including obtaining the sawed-off shot gun, and that
defendant aided his accomplice in forcibly stealing a cell phone
from the female victim and a key and key chain from the male
victim, thereby giving rise to the findings of guilt of robbery
in the first degree under a theory of accomplice liability (see
Penal Law § 20.00; People v Myrick, 135 AD3d 1069, 1070 [2016]).
Further, with respect to assault in the first degree, while
defendant argued at trial that he did not intend to shoot the
male victim, the jury was entitled to reject this defense, as
defendant's intent to cause serious physical injury could be
readily inferred from the circumstances, as well as defendant's
conduct of directing the sawed-off shotgun roughly six inches
from the male victim's head, striking the male victim with the
gun as he struggled with the accomplice inside the vehicle and
shooting the male victim after he grabbed the gun (see People v
Carter, 74 AD3d 1375, 1377 [2010], lv denied 15 NY3d 772 [2010];
see generally People v Gibson, 141 AD3d 1009, 1012 [2016]).
Finally, the evidence established that defendant committed class
B and C violent felony offenses and possessed a loaded, deadly
weapon from which a shot was discharged and caused serious
injury. Accordingly, deferring to the jury's credibility
determinations and having reviewed and weighed the evidence in a
neutral light (see People v Launder, 132 AD3d 1151, 1151 [2015],
lv denied 27 NY3d 1153 [2016]; People v Nicholas, 130 AD3d 1314,
1315 [2015]), we are satisfied that the verdict as to the
                              -7-                105760

remaining crimes was not against the weight of the evidence.

      Defendant also argues that several improper comments made
by the prosecution during summation deprived him of a fair trial,
including a misstatement that proof of intent was not required to
convict him for robbery in the first degree and attempted robbery
in the first degree and remarks suggesting that he knew that the
firearm was loaded. Defendant, however, objected only to the
prosecution's comment that he knew the firearm was a break-barrel
gun because he broke it open and, in the process of so doing, saw
that it was loaded and, thus, only that claim is preserved for
appellate review (see People v Williams, 8 NY3d 854, 855 [2007];
People v Nichols, 257 AD2d 851, 852 [1999], lv denied 93 NY2d 901
[1999]). While the challenged comment indeed appears to have
misstated the evidence, we are unconvinced that the misstatement
rose to such a level as to deprive defendant of a fair trial (see
People v Robinson, 16 AD3d 768, 770 [2005], lv denied 4 NY3d 856
[2005]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv
denied 81 NY2d 884 [1993]). Moreover, even if we were to reach
defendant's unpreserved challenges, we would not find that the
prosecutor's misstatement of the law or other comments deprived
defendant of a fair trial, as County Court correctly instructed
the jury on the element of intent with respect to the robbery and
attempted robbery charges (see People v Bryan, 46 AD3d 1219, 1221
[2007], lv denied 10 NY3d 809 [2008]) and, viewing the summation
as a whole, the People did not engage in a pervasive and flagrant
pattern of misconduct so as to deprive defendant of a fair trial
(see People v Grady, 40 AD3d 1368, 1374-1375 [2007], lv denied 9
NY3d 923 [2007]; People v Richard, 30 AD3d 750, 755 [2006], lv
denied 7 NY3d 869 [2006]).

      Finally, notwithstanding defendant's young age of 16 at the
time that he committed the crimes and his lack of prior criminal
history, we do not agree with defendant that his sentence was
harsh and excessive, given, among other things, the calculated
and violent nature of the crimes and the serious physical injury
sustained by the male victim (see People v Morgan, 24 AD3d 950,
                                -8-                  105760

954 [2005], lv denied 6 NY3d 815 [2006]).2 Nor is there any
evidence in the record to substantiate his contention that the
20-year aggregate prison sentence was imposed as a penalty for
rejecting a plea offer of 15 years in prison and exercising his
right to proceed to a trial (see People v Speed, 134 AD3d 1235,
1237 [2015], lv denied 27 NY3d 1155 [2016]).

      Defendant's remaining contentions, including his claimed
violation of CPL 710.30, have been reviewed and determined to be
without merit.

        McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.



        ORDERED that the judgment is affirmed.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    2
        While not raised by defendant on appeal, we note that
County Court expressly considered and determined in its
discretion that defendant was ineligible for youthful offender
status pursuant to CPL 720.10 (2) (a) (ii) and (3) (see generally
People v Marquis A., 145 AD3d 61, 67 [2016]).
