| People v Curry |
| 2011 NY Slip Op 04549 [85 AD3d 1209] |
| June 2, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William T.Curry, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeals from two judgments of the County Court of Broome County (Smith,J.), rendered September 29, 2009, (1) upon a verdict convicting defendant of the crimes ofrobbery in the second degree (two counts), criminal possession of a weapon in the second degree,assault in the third degree and criminal possession of stolen property in the fifth degree, and (2)convicting defendant upon his plea of guilty of the crime of attempted robbery in the seconddegree.
Defendant and two codefendants encountered the victim on the street. After exchanging gangslang with one of the codefendants, the victim pulled a gun. When a police car drove nearby, thevictim put the gun in his pocket. Defendant and the codefendants then beat the victimunconscious and took his jacket, gun and cell phone. As a result, a jury convicted defendant ofrobbery in the second degree (two counts), criminal possession of a weapon in the second degree,assault in the third degree and criminal possession of stolen property in the fifthdegree.[FN*][*2]
Based on an unrelated incident, defendant pleaded guiltyto attempted robbery in the second degree in exchange for a sentence of three years in prison,followed by three years of postrelease supervision, to run concurrently with the agreed-uponsentences stemming from his convictions after trial. That agreement included concurrent terms ofseven years in prison, followed by five years of postrelease supervision, for each of the robberyand weapon possession counts, and one-year sentences for the assault and criminal possession ofstolen property counts. County Court imposed the agreed-upon sentences for all of defendant'sconvictions. He now appeals.
The robbery convictions were supported by legally sufficient evidence and not against theweight of the evidence. Defendant only challenges the proof regarding larcenous intent, namelythat he wrongfully took property with the intent to deprive another of that property (seePenal Law § 155.05 [1]; People v Jennings, 69 NY2d 103, 118 [1986]; Peoplev Ocasio, 265 AD2d 675, 676 [1999]). In his statement to police, defendant acknowledgedthat he and his codefendants knocked the victim to the ground, defendant "stole" the victim's cellphone and the codefendants took his gun. That statement constituted legally sufficient evidenceof robbery (see People v Bowman,79 AD3d 1368, 1369 [2010], lv denied 16 NY3d 828 [2011]). In his grand jurytestimony that was admitted at trial, defendant asserted that they only took the gun to prevent thevictim from using it. The jury was free to disregard that asserted intent and instead find alarcenous intent based upon defendant's written statements and the victim's testimony. Even if thecodefendants took the gun for their stated purpose, larcenous intent regarding another item couldbe inferred because defendant admitted that he took the victim's cell phone, used it to text hisfriend, and lied to the police about possessing it and how he acquired it. Additionally, thecontents of the victim's pants pockets were scattered on the ground at the scene, while defendantand the victim stated that the gun was in his jacket pocket, indicating a larcenous intent in thatdefendant or his codefendants rifled through the victim's pants pockets for a reason other thandisarming him. Hence, the weight of the evidence supported the robbery convictions.
The criminal possession of a weapon conviction was supported by legally sufficient evidenceand not against the weight of the evidence. After taking the gun from the victim, defendant andhis codefendants possessed a loaded firearm (see Penal Law § 265.03 [3]). In somecircumstances, however, despite possessing a proscribed weapon, a person may not be guilty dueto "the innocent nature of the possession" (People v Almodovar, 62 NY2d 126, 130[1984]). Temporary and lawful possession may be established where there is "a legal excuse forhaving the weapon . . . as well as facts tending to establish that, once possession hasbeen obtained, the weapon ha[s] not been used in a dangerous manner" (People vWilliams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 801[1990]). Disarming an opponent in a fight may qualify for this exception (see People vBanks, 76 NY2d at 800-801).
Defendant's grand jury testimony and the victim's testimony proved that a police car passednearby after the victim pulled a gun, but defendant made no effort to flag down the officer. Aftertaking the gun from the victim, defendant and the codefendants did not surrender it to police, nordid they show any intention to do so. Instead, while inspecting the weapon, one of thecodefendants accidentally shot defendant in the arm. Rather than call an ambulance or go to thehospital, defendant spent the night drinking before someone convinced him to go to the hospitalthe next day. Defendant then lied to police about how he was shot, who shot him and where thegun was located. Despite defendant's grand jury testimony that he only intended to get the gunaway from the victim to prevent the victim from shooting at defendant and his codefendants, thejury could have determined from their actions that, upon taking the gun, they [*3]sought to hide it and keep it rather than holding it temporarily,refuting the claim of innocent possession (see People v Banks, 76 NY2d at 801;People v Snyder, 73 NY2d 900, 901-902 [1989]). Thus, the weapon possession chargewas supported by legally sufficient evidence and not against the weight of the evidence. Becausedefendant's behavior was inconsistent with innocent temporary possession of the gun, CountyCourt did not err in denying his request for a jury instruction on that defense (see People vBanks, 76 NY2d at 800-801; People v Snyder, 73 NY2d at 901-902).
County Court did err, however, in denying defendant's request for a justification charge onthe assault count. A trial court must consider the evidence in a light most favorable to thedefendant and grant the request to charge justification if any reasonable view of the evidencemight lead the jury to decide that the defendant's actions were justified (see People vPadgett, 60 NY2d 142, 144-145 [1983]). A defendant is justified in using physical forceupon another person when "he or she reasonably believes such to be necessary to defend himself,herself or a third person from what he or she reasonably believes to be the use or imminent use ofunlawful physical force by such other person" (Penal Law § 35.15 [1]). The People havethe burden of disproving this defense beyond a reasonable doubt (see Penal Law §25.00 [1]). While deadly physical force cannot be used if the defendant could have safelyretreated, retreat is not required prior to the use of ordinary physical force in self-defense (seeMatter of Y.K., 87 NY2d 430, 433 [1996]; People v Bradley, 297 AD2d 640,641-642 [2002], lv denied 99 NY2d 556 [2002]; People v Young, 240 AD2d 974,976 [1997], lv denied 90 NY2d 1015 [1997]; compare Penal Law § 35.15[1], with Penal Law § 35.15 [2] [a]).
In his grand jury testimony, defendant stated that even when the victim put the gun in hispocket he was holding it in a threatening manner, defendant was afraid that the victim was goingto shoot at defendant and his codefendants, and he and his codefendants jumped the victim,subdued him and took the gun to prevent him from shooting them. This testimony indicated thatdefendant believed that he and his codefendants were subject to the imminent use of force by thevictim, which would permit him to use physical force to defend himself and his friends.Although there was strong evidence to negate this testimony, when viewing the evidence indefendant's favor, a jury could have determined that defendant was justified in using forceagainst the victim (see People v Padgett, 60 NY2d at 144-145). Therefore, defendant wasentitled to have County Court deliver a justification defense charge to the jury. Refusal to deliverthe requested charge was reversible error (see People v McManus, 67 NY2d 541, 549[1986]; People v Watts, 57 NY2d 299, 301 [1982]). As that charge was only requested onthe assault count, we reverse and remit for further proceedings related to defendant's convictionon that count only.
Defendant correctly contends that he may withdraw his plea on the second indictment if itwas induced by a promise that the sentence would run concurrently with the sentence in anothercase and the conviction in that other case is overturned, thereby depriving him of the benefit ofhis bargain (see People v Pichardo,1 NY3d 126, 129 [2003]). Our reversal of the assault count does not create such a scenario.The aggregate maximum sentence flowing from his convictions after trial is unaffected by ourreversal of the assault count, which resulted in a concurrent one-year sentence. Becausedefendant still received the benefit of his plea bargain, he is not entitled to withdraw his plea andthe judgment of conviction for attempted robbery in the second degree is affirmed.
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment renderedSeptember 29, 2009 after trial is modified, on the law, by reversing defendant's conviction ofassault in the third degree under count five of the indictment and vacating the sentence imposedthereon; matter remitted to the County Court of Broome County for a new trial on said count;and, as so modified, affirmed. Ordered that the judgment rendered September 29, 2009 upon theplea of guilty is affirmed.
Footnote *: This Court recently affirmed theconviction of one of the codefendants (People v Bowman, 79 AD3d 1368 [2010], lv denied 16NY3d 828 [2011]).