SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

73 

KA 10-02428 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JETONE JONES, DEFENDANT-APPELLANT. 

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (M.

William Boller, A.J.), rendered October 8, 2010. 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 case is held, the decision is

reserved and the matter is remitted to Supreme Court, Erie County, for

further proceedings in accordance with the following Memorandum: On

appeal from a judgment convicting him upon a jury verdict of robbery

in the first degree (Penal Law § 160.15 [3]) and robbery in the second

degree (§ 160.10 [1]), defendant contends that reversal is required

because the record fails to establish whether Supreme Court provided a

meaningful response to the jury’s request for exhibits. Defendant did

not preserve that contention for our review and, in any event, there

is no evidence in the record that the court did not comply fully with

the jury’s request (see People v Snider, 49 AD3d 459, 459, lv denied

11 NY3d 795, citing People v Kisoon, 8 NY3d 129, 135; see generally

People v O’Rama, 78 NY2d 270, 276). Defendant’s suggestion to the

contrary is based solely on speculation. 

Defendant further contends that the conviction is not supported

by legally sufficient evidence. We reject that contention (see

generally People v Bleakley, 69 NY2d 490, 495). The evidence

established that the victim, who had known defendant for several

years, observed him seated with another man in a truck at a gas

station, drinking from a Grey Goose vodka bottle that was partially

wrapped in a paper bag. After a short conversation between defendant

and the victim, defendant exited the truck and struck the victim in

the head with a hard object. A struggle ensued and, while the victim

was on the ground, defendant or his companion stole cash, a cell phone

and a pack of Newport cigarettes from the victim’s pockets. Although

the victim did not see the object that defendant used to strike him,
-2- 73 

KA 10-02428 

defendant believed that it was the vodka bottle. After defendant

drove away, the victim called 911 and reported the crime. 

Within 20 minutes, the police observed defendant and his

codefendant in a vehicle matching the description of the robbers’

vehicle provided by the victim. The vehicle was parked on a street

approximately a quarter of a mile from the crime scene. Upon

investigation, the police learned that the victim’s cell phone was in

the vehicle, along with a pack of Newport cigarettes and a bottle of

Grey Goose vodka. Another Grey Goose bottle was found on the grass

next to the vehicle. The victim then identified defendant in a prompt

showup procedure. While defendant was in a holding room at the police

station following his arrest, a police investigator heard defendant

saying to his codefendant, “Man, I should have thrown the phone out,”

or words to that effect. 

The above evidence, viewed in the light most favorable to the

People (see People v Contes, 60 NY2d 620, 621), is legally sufficient

to support the conviction. Although the victim did not see defendant

strike him with a Grey Goose bottle, which constitutes a dangerous

instrument under these circumstances (see People v Joseph, 23 AD3d

174, 175, lv denied 6 NY3d 777; People v Soumik, 244 AD2d 584, 584, lv

denied 91 NY2d 897), the evidence is legally sufficient to establish

that defendant used the Grey Goose vodka bottle to attack defendant

from behind in order to steal his property (see People v Jacobs, 188

AD2d 897, 898, lv denied 81 NY2d 887; People v Carey, 180 AD2d 431,

432, lv denied 79 NY2d 998; cf. People v McBride, 203 AD2d 85, 86, lv

denied 83 NY2d 912). Further, 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 495). 

Although a different verdict would not have been unreasonable, upon

independently “weigh[ing] the relative probative force of conflicting

testimony and the relative strength of conflicting inferences that may

be drawn from the testimony,” we conclude that the jury did not fail

to give the evidence the weight it should be accorded (People v Rayam,

94 NY2d 557, 560 [internal quotation marks omitted]).

Defendant further contends that he was deprived of a fair trial

by various erroneous evidentiary rulings made by the court, some of

which were of constitutional dimension. Defendant failed to preserve

for our review his contentions with respect to the alleged errors (see

CPL 470.05 [2]). In any event, even assuming, arguendo, that the

court erred in one or more of its evidentiary rulings, we conclude

that “there is overwhelming proof of the defendant’s guilt and no

reasonable possibility that the error[s] might have contributed to the

defendant’s conviction” (People v Khan, 200 AD2d 129, 139-140, lv

denied 84 NY2d 937; see generally People v Crimmins, 36 NY2d 230,

237). We reject defendant’s further contention that he was denied

effective assistance of counsel (see generally People v Baldi, 54 NY2d

137, 147). We have reviewed defendant’s contention concerning venue

and conclude that it does not require reversal or modification of the

judgment.
-3- 73 

KA 10-02428 

We agree with defendant, however, that the court erred in failing

to rule on those parts of his pretrial motion seeking inspection of

the grand jury minutes and seeking dismissal of the indictment on the

ground that the integrity of the grand jury proceedings was impaired

(see People v Spratley, 96 AD3d 1420, 1421). The record does not

reflect that the court ever ruled on defendant’s motion, and a failure

to rule on a motion cannot be deemed a denial thereof (see id.; see

also People v Concepcion, 17 NY3d 192, 197-198). We therefore hold

the case, reserve decision and remit the matter to Supreme Court to

decide those parts of defendant’s motion. 

Entered: February 8, 2013 Frances E. Cafarell

Clerk of the Court