SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

108 

KA 10-01077 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JASON R. VOTRA, DEFENDANT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (MARK MOODY OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Oswego County Court (Walter W.

Hafner, Jr., J.), rendered May 10, 2010. The judgment convicted

defendant, upon a jury verdict, of robbery in the second degree (two

counts). 

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 two counts of robbery in the second degree

(Penal Law § 160.10 [1]). We reject defendant’s contention that

County Court abused its discretion in denying his motion for recusal. 

“Absent a legal disqualification under Judiciary Law § 14, a Trial

Judge is the sole arbiter of recusal . . . [and a] court’s decision in

this respect may not be overturned unless it was an abuse of

discretion” (People v Moreno, 70 NY2d 403, 405-406; see People v

Williams, 66 AD3d 1440, 1441-1442, lv denied 13 NY3d 911). Moreover,

the court was not obligated to recuse itself on the ground that it had

presided over the trial of defendant’s codefendant (see People v

Bennett, 238 AD2d 898, 899-900, lv denied 90 NY2d 890, cert denied 524

US 918). 

Defendant further contends that his indelible right to counsel

was violated because he was represented on unrelated charges at the

time he was questioned by the police with respect to the present

offense. We reject that contention. “[D]efendant was not in custody

on the unrelated charge[s] for which he had previously invoked his

right to counsel, and thus he did not have a derivative right to

counsel with respect to the [robbery] charge” (People v Mantor, 96

AD3d 1645, 1646, lv denied 19 NY3d 1103; see People v Steward, 88 NY2d

496, 500-502, rearg denied 88 NY2d 1018). Defendant’s contention that

the court abused its discretion in denying his request for an
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KA 10-01077 

adjournment of the trial in order to obtain a transcript of his

codefendant’s trial is without merit, particularly given that the

transcript might never be available due to the serious illness of the

court reporter who transcribed the codefendant’s trial. “ ‘The

court’s exercise of discretion in denying a request for an adjournment

will not be overturned absent a showing of prejudice’ ” (People v

Aikey, 94 AD3d 1485, 1486, lv denied 19 NY3d 956; see People v Arroyo,

161 AD2d 1127, 1127, lv denied 76 NY2d 852), which was not established

here.

Defendant failed to preserve for our review his contention that

the conviction is not supported by legally sufficient evidence because

he failed to renew his motion for a trial order of dismissal after

presenting evidence (see People v Hines, 97 NY2d 56, 61, rearg denied

97 NY2d 678). In any event, that contention is without merit. 

Viewing the evidence in the light most favorable to the People (see

People v Contes, 60 NY2d 620, 621), we conclude that the evidence is

legally sufficient to establish that defendant, acting with his

codefendant who was actually present, forcibly stole cocaine and money

from the respective victims (see People v Leggett, 101 AD3d 1694,

1694; see generally People v Danielson, 9 NY3d 342, 349; People v

Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the

elements of the crime as charged to the jury (see Danielson, 9 NY3d at

349), we further conclude that, although a different result would not

have been unreasonable, the jury did not fail to give the conflicting

evidence the weight it should be accorded (see generally Bleakley, 69

NY2d at 495). 

We have reviewed defendant’s remaining contentions and conclude

that none requires modification or reversal of the judgment.

Entered: March 15, 2013 Frances E. Cafarell

Clerk of the Court