ACEVEDO, JOSE, PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
67
KA 12-00213
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JOSE ACEVEDO, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (LINDA M. CAMPBELL OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered July 19, 2011. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree (two counts), robbery in the second degree (two counts) and
assault in the second 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, inter alia, two counts of robbery in the first
degree (Penal Law § 160.15 [3]). Defendant failed to preserve for our
review his contention that the conviction is not supported by legally
sufficient evidence. Although defendant moved at the close of the
People’s case for a trial order of dismissal, he did not renew the
motion at the close of his case (see People v Hines, 97 NY2d 56, 61,
rearg denied 97 NY2d 678). In any event, we conclude that defendant’s
contention is without merit (see generally People v Bleakley, 69 NY2d
490, 495). Because the conviction is supported by legally sufficient
evidence, the contention of defendant that Supreme Court erred in
refusing to dismiss the indictment based upon the alleged
insufficiency of the evidence before the grand jury is not reviewable
on appeal (see CPL 210.30 [6]; People v Hawkins, 113 AD3d 1123, 1125,
lv denied 22 NY3d 1156). Contrary to defendant’s further contention,
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 at 495).
Contrary to defendant’s contention, the court properly denied his
challenge for cause of a prospective juror. Although the prospective
juror expressed concern regarding his financial hardship as a result
-2- 67
KA 12-00213
of his potential jury service, he reassured the court that his
employment obligations would not prevent him from being fair and
impartial (see People v Wilson, 52 AD3d 941, 942, lv denied 11 NY3d
743). “Considering that almost every potential juror is
inconvenienced by taking a week or more away from one’s work or normal
routine, and that each has personal concerns which could cause some
distraction from a trial, [the court] did not abuse its discretion in
denying defendant’s challenge for cause” (id.).
Defendant contends that the People improperly impeached their own
witness by confronting him with his previous statement to the police.
Defendant failed to preserve that contention for our review inasmuch
as he did not object to the People’s line of questioning at trial (see
People v Cruz, 23 AD3d 1109, 1110, lv denied 6 NY3d 811), and we
decline to exercise our power to review it as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).
We reject defendant’s contention that the court erred in failing
to strike the testimony of the People’s expert forensic examiner.
Although the expert could not determine if the blood found on the
knife in defendant’s possession was human blood, her testimony was
still probative on the issue whether defendant was involved, either as
a principal or as an accomplice, in the robbery. “The trial court is
granted broad discretion in making evidentiary rulings in connection
with the preclusion or admission of testimony and such rulings should
not be disturbed absent an abuse of discretion[,]” and we discern no
abuse of discretion here (People v Almonor, 93 NY2d 571, 583).
Finally, we reject defendant’s contention that his sentence is
unduly harsh and severe.
Entered: February 11, 2016 Frances E. Cafarell
Clerk of the Court