| People v Murphy |
| 2009 NY Slip Op 07694 [66 AD3d 1234] |
| October 29, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Andraus M.Murphy, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Stephen D. Ferri of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered December 20, 2007, upon a verdict convicting defendant of the crime of robbery in thesecond degree (two counts).
On December 17, 2006 at approximately 1:00 a.m., the victim was allegedly beaten androbbed by defendant and four other men, including codefendant Gregory E. Hayden. Accordingto the victim, he exited a bar in the Village of Endicott, Broome County with defendant andHayden after meeting both men for the first time earlier that night. The victim agreed to purchasemarihuana from the men and accompanied them to a nearby stairwell off of an alleyway leadingto Hayden's third-floor apartment. The victim and defendant stayed on the second-floor landingwhile Hayden continued to the third floor. Shortly thereafter, Hayden came down the stairs withtwo men, while a third unidentified man approached the second-floor landing from below. Thevictim indicated that Hayden then drew a pistol and attempted to point it in his face. Hedescribed how he grabbed the gun from Hayden and was able to pry it away, however, defendantand the other men then repeatedly struck him in the head and face, dragged him down the stairs,kicked him, and stomped on him. They pulled his sweatshirt over his head, ripped open his pantspocket, took his cash and other belongings and left him lying at the bottom of the stairwell. Afterthe attack, the victim walked to his girlfriend's house and the police were called.[*2]
Defendant and Hayden were thereafter arrested andjointly charged in an indictment with three counts of robbery in the second degree and one countof assault in the third degree. Following a joint trial, a jury found defendant guilty of two countsof robbery in the second degree, but acquitted him of the remaining two charges.[FN1]He was sentenced to two concurrent four-year prison terms, to be followed by four years ofpostrelease supervision.
Initially, we are unpersuaded by defendant's contention that his convictions were against theweight of the evidence.[FN2]According to defendant, the victim's testimony as to his alleged participation was inconsistentand confusing and caused the jury to convict defendant based upon proof of wrongdoingcommitted by Hayden. Since, as the People concede, a different verdict would not have beenunreasonable herein, we must, like County Court, "weigh conflicting testimony, review anyrational inferences that may be drawn from the evidence and evaluate the strength of suchconclusions. Then, based upon the weight of the credible evidence, we must decide whether thejury was justified in finding the defendant guilty beyond a reasonable doubt" (People v Alford, 65 AD3d 1392,1393 [2009] [citations and internal quotation marks omitted]; see People v Bleakley, 69NY2d 490, 495 [1987]; People vHayden, 60 AD3d 1155, 1156 [2009], lv denied 12 NY3d 854 [2009]).
Here, with respect to count one of the indictment charging both defendants with forciblystealing the victim's property while being aided and abetted by the other (see Penal Law§ 160.10 [1]), the victim testified to the rifling of his pockets in the course of the scuffleand identified items taken from him that were recovered in Hayden's apartment. As fordefendant's participation, defendant admitted during questioning by the police that he met thevictim on the night in question, walked with him to a nearby alleyway accompanied by anothermale and was present during the ensuing altercation. Although defendant also told the police thathis only involvement in the melee was his attempt to break up the fight, the victim specificallytestified that, after Hayden brandished a weapon, defendant, who was directly in front of him,started "swinging and hitting" him.
Viewing this evidence in a neutral light and giving due deference to the jury's credibilitydeterminations, the verdict with respect to count one of the indictment is not against the weightof the evidence (see People v Hayden, 60 AD3d at 1157; People v Jackson, 48 AD3d 891,892 [2008], lv denied 10 NY3d 841 [2008]). While there may be certain inconsistenciesin the victim's testimony with respect to his prior statements, we do not find that thoseinconsistencies rendered his testimony incredible as a matter of law (see People vHayden, 60 AD3d at 1157). Furthermore, given the extensive testimony by the victim andother witnesses concerning the injuries he sustained in the course of the robbery (see id.),we do not find the verdict convicting [*3]defendant of count twoof the indictment charging both defendants with causing physical injuries to the victim in thecourse of forcibly stealing his property (see Penal Law § 160.10 [2] [a]) to beagainst the weight of the evidence.
Next, defendant raises various arguments asserting that the jury's verdict was repugnant. Asnoted by defendant, however, no objection was made to the verdict prior to the discharge of thejury. "In order to preserve claims that a jury verdict is inconsistent or repugnant, such claimsmust be made before the jury is discharged, at a time when the court can resubmit the matter tothe jury to obtain a consistent verdict" (People v Perry, 27 AD3d 952, 953 [2006], lv denied 8NY3d 883 [2007] [citations omitted]; see People v Alfaro, 66 NY2d 985, 987 [1985])Accordingly, this issue has not been preserved for our review.
Additionally, defendant contends that his four-year sentence is harsh and excessive in lightof, among other things, his young age and college aspirations. We do not agree. Given the natureof the subject crimes, as well as defendant's prior criminal history and lack of remorse, "we findneither an abuse of discretion by County Court nor the existence of any extraordinarycircumstances warranting a reduction of the sentence in the interest of justice" (People v Mitchell, 55 AD3d 1048,1052 [2008], lv denied 12 NY3d 856 [2009]; see People v Sims, 57 AD3d 1106, 1109 [2008] [2009], lvdenied 12 NY3d 762 [2009]).
Finally, the remaining issues raised by defendant and not specifically addressed herein,including his challenge to the jury instructions, have been examined and found to beunpersuasive.
Spain, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The jury found Hayden guilty ofthree counts of robbery in the second degree and that conviction was upheld by this Court (People v Hayden, 60 AD3d 1155[2009], lv denied 12 NY3d 854 [2009]).
Footnote 2: Although defendant also arguesthat the evidence was legally insufficient to support his convictions, he failed to properlypreserve that claim for our review (seePeople v Richardson, 55 AD3d 934, 935 n 1 [2008], lv dismissed 11 NY3d 857[2008]).