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
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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