SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

936 

KA 14-01243 

PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JOSEPH MACHADO, DEFENDANT-APPELLANT.

 

STEPHEN J. BIRD, ROCHESTER, FOR DEFENDANT-APPELLANT.

JOSEPH MACHADO, DEFENDANT-APPELLANT PRO SE.

GREGORY J. MCCAFFREY, DISTRICT ATTORNEY, GENESEO (JOSHUA J. TONRA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Livingston County Court (Dennis S.

Cohen, J.), rendered May 22, 2014. The judgment convicted defendant,

upon a jury verdict, of robbery in the first degree (two counts),

burglary in the first degree (two counts), grand larceny in the fourth

degree (three counts) and unlawful imprisonment 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, inter alia, two counts each of robbery in the

first degree (Penal Law § 160.15 [3], [4]) and burglary in the first

degree (§ 140.30 [3], [4]). At trial, the victim testified that two

men entered his home, placed a pillowcase over his head, and took many

of his belongings, including a shotgun. Before leaving the victim’s

home, one of the men held the shotgun to the victim’s head, and the

victim noticed that one of the intruders wore red sneakers. One of

the intruders testified at defendant’s trial that he and defendant

committed the crimes, and that defendant had been wearing the red

sneakers during the incident. The victim’s neighbor testified that

defendant had been at his house the evening prior to the crimes, and

that defendant was wearing red sneakers. The neighbor further

testified that, while defendant was at his house, a video was recorded

that depicted defendant’s red sneakers. Although the video did not

show defendant’s face, the victim testified that the red sneakers

depicted in the video were the same ones that he observed on one of

the intruders.

We reject defendant’s contention that County Court should have

dismissed the indictment on the ground that the integrity of the grand

jury proceeding was impaired. Although the People submitted some
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KA 14-01243 

hearsay evidence to the grand jury, the remaining evidence was

sufficient to sustain the indictment (see People v Huston, 88 NY2d

400, 409; People v Butcher, 11 AD3d 956, 958, lv denied 3 NY3d 755).

Defendant contends that the evidence is legally insufficient to

sustain the conviction of one count of robbery in the first degree

(Penal Law § 160.15 [3]) and one count of burglary in the first degree

(§ 140.30 [3]) because the People did not establish that the shotgun

was used or threatened to be used as a dangerous instrument. We

reject that contention. To establish that a gun is a dangerous

instrument, the People must present evidence that it was loaded and

operable or that it was used as a club or bludgeon (see People v

Spears, 125 AD3d 1400, 1400, lv denied 25 NY3d 1172; People v Wilson,

252 AD2d 241, 249). Here, the People established through

circumstantial evidence that the weapon was a dangerous instrument

inasmuch as it was loaded and operable (see People v Spears, 125 AD3d

1401, 1402, lv denied 25 NY3d 1172). The shotgun was never recovered,

but the victim testified that he kept it loaded and in his bedroom,

and that he had fired it on previous occasions. 

Defendant further contends that the conviction on all counts

should be reversed because there is legally insufficient evidence

identifying him as the perpetrator. According to defendant, the

People did not provide the required notice pursuant to CPL 710.30 that

the victim would identify the red sneakers at trial and that

identification testimony therefore should have been precluded. We

conclude that no CPL 710.30 notice was required because there was no

police-arranged identification procedure in which the victim

identified defendant (see CPL 710.30 [1] [b]; People v Jackson, 71

AD3d 1457, 1457-1458, lv dismissed in part and denied in part 17 NY3d

774). We further conclude that the evidence, including the testimony

of the second intruder identifying defendant and the testimony of the

neighbor that defendant was wearing red sneakers around the time of

the offense, is sufficient to establish defendant’s identity. 

Contrary to defendant’s further contention, upon 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 People v

Bleakley, 69 NY2d 490, 495).

Defendant failed to preserve for our review his contention that

he was denied a fair trial based on prosecutorial misconduct on

summation (see People v Cullen, 110 AD3d 1474, 1475, affd 24 NY3d

1014; People v Clark, 138 AD3d 1449, 1451, lv denied 27 NY3d 1130). 

In any event, any alleged improprieties were not so egregious as to

deprive defendant of a fair trial (see Clark, 138 AD3d at 1451; People

v Walker, 117 AD3d 1441, 1442, lv denied 23 NY3d 1044). Defendant

also failed to preserve for our review his contention in his main

brief that the prosecutor improperly bolstered the victim’s

identification of the red sneakers worn by defendant, and his

contention in his pro se supplemental brief that the prosecutor

offered precluded testimony (see CPL 470.05 [2]). We decline to

exercise our power to review those contentions as a matter of
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KA 14-01243 

discretion in the interest of justice (see CPL 470.15 [6] [a]). 

Viewing the evidence, the law and circumstances of this case, in

totality and as of the time of representation, we reject defendant’s

further contention in his main and pro se supplemental briefs that he

was denied effective assistance of counsel (see generally People v

Baldi, 54 NY2d 137, 147). Finally, the sentence is not unduly harsh

or severe.

Entered: November 18, 2016 Frances E. Cafarell

Clerk of the Court