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