| People v Knox |
| 2016 NY Slip Op 01525 [137 AD3d 1330] |
| March 3, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vSloman J. Knox, Jr., Appellant. |
Frank A. Sarat, Homer, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered October 30, 2014, upon a verdict convicting defendant of thecrimes of attempted robbery in the first degree and attempted robbery in the seconddegree.
Defendant was indicted and charged—as an accomplice—withattempted robbery in the first degree and attempted robbery in the second degree. Thecharges stemmed from an incident that began on the morning of August 15, 2013 whendefendant agreed to accompany Robert Rouille for a car ride and culminated in Rouille'sfailed attempt to collect on a drug debt from one Francis Backus. Following a jury trial,defendant was convicted on both counts and thereafter was sentenced, as a second felonyoffender, to five years in prison followed by five years of postrelease supervision for hisconviction of attempted robbery in the first degree and three years in prison followed byfive years of postrelease supervision for his conviction of attempted robbery in thesecond degree, said sentences to run concurrently. Defendant now appeals.[FN1]
Defendant's primary argument upon appeal is that the verdict is not supported bylegally sufficient evidence—specifically with respect to the issue of defendant'slarcenous intent. Insofar [*2]as is relevant here, "[a]person is guilty of attempted robbery in the first degree when, with intent to forcibly stealproperty, he or she engages in conduct which tends to do so, 'and when, in the course ofthe attempted commission of the crime or of immediate flight therefrom, he or she oranother participant in the crime . . . displays what appears to be a. . . firearm' " (People v Osinowo, 28 AD3d 1011, 1012 [2006] [bracketsomitted], lv denied 7 NY3d 792 [2006], quoting Penal Law§ 160.15 [4]; see Penal Law § 110.00). Similarly, aperson is guilty of attempted robbery in the second degree when he or she undertakes toforcibly steal property and, "[i]n the course of the commission of the crime or ofimmediate flight therefrom, he [or she] or another participant . . . [c]ausesphysical injury to any" nonparticipant in the crime (Penal Law § 160.10 [2][a]; see Penal Law § 110.00; People v Zabala, 290 AD2d578, 580 [2002], lv denied 97 NY2d 735 [2002]). A defendant may be foundguilty of these crimes "under a theory of accomplice liability when such defendant, withthe intent to forcibly steal property, 'solicits, requests, commands, importunes, orintentionally aids another person to engage in [such] conduct' " (People v Vicioso, 116 AD3d1250, 1251 [2014] [brackets omitted], quoting Penal Law § 20.00; see People v Bush, 75 AD3d917, 918 [2010], lv denied 15 NY3d 919 [2010]; cf. People v Daniels, 24 AD3d970, 971 [2005], lv denied 6 NY3d 811 [2006]). While it is true that adefendant's mere presence at the scene of the crime is, standing alone, insufficient tosupport a finding of criminal liability (see People v Cabey, 85 NY2d 417, 421[1995]; People v Chardon,83 AD3d 954, 957 [2011], lv denied 18 NY3d 857 [2011]; see also People v Robinson, 53AD3d 681, 683 n [2008], lv denied 11 NY3d 794 [2008]), it is equally truethat the requisite intent "may be inferred from a defendant's conduct and from thesurrounding circumstances" (People v Bush, 75 AD3d at 918; see People v Chaplin, 134AD3d 1148, 1151 [2015]; People v Rupert, 118 AD3d 1126, 1127 [2014]; Peoplev Vicioso, 116 AD3d at 1251; People v Callicut, 101 AD3d 1256, 1258 [2012], lvdenied 20 NY3d 1096 [2013]).
Here, Backus testified that he left his house on the morning in question atapproximately 9:00 a.m. intending to walk to a local store. Almost immediately, a grayfour-door sedan pulled up alongside him; defendant, whom Backus had known for threeor four years, was driving, and Rouille, whom Backus had known for approximately 20years, was the front-seat passenger. According to Backus, he had been involved in drugtransactions with Rouille for the past month or so. Consistent with their establishedprocedure, Rouille would "front" drugs—usually marihuana—to Backus oncredit with the understanding that Backus would pay him as soon as possible.[FN2] On this particularmorning, Backus owed Rouille $300 for marihuana.
Backus testified that Rouille told him to get in the car; Backus complied and climbedinto the rear passenger seat of the vehicle. Rouille then inquired as to whether Backushad the money; when Backus indicated that he did not have the $300 that he owed,Rouille asked Backus where his girlfriend could be found and thereafter told defendantto drive to the girlfriend's residence.[FN3] Backus testified that, while en route tohis girlfriend's house, Rouille retrieved a gun from underneath the driver'sseat—specifically, a large-caliber snub-nose revolver—and informedBackus, "If I don't get my money today, either you or [your girlfriend is] getting shot."Backus further testified that, during the drive to his girlfriend's house, defendant andRouille[*3]"were talking back and forth the whole time"and, at one point, Backus said to defendant, "Yeah, you were right, these people can't betrusted, they're selfish"—a comment that Backus understood to be a reference todrug addicts.
Upon arriving at the girlfriend's apartment complex, Backus and Rouille exited thevehicle and eventually were buzzed into the premises. Defendant remained in the vehicle.Once inside the apartment, Rouille pointed the gun at Backus' girlfriend and "told her[s]he had 30 minutes to get the money or else somebody [was] getting shot." Aconversation between Rouille and Backus' girlfriend then ensued; when Rouille informedher that she now had 15 minutes to get his money, Backus' girlfriend told Rouille to goahead and shoot. Rouille then dropped the weapon and punched the woman with his fist,at which point Backus intervened. The girlfriend fled the apartment while Rouilleassaulted Backus—repeatedly striking Backus with his fists and the gun. When thephysical struggle ended, Rouille began loading the revolver; when Backus told him toput the gun down, Rouille responded by searching the apartment for Backus' girlfriendand, upon discovering that she was gone, left the premises. Photographs contained in therecord on appeal depict various cuts and bruises to Backus' face and head, and a liveround of ammunition subsequently was recovered from the apartment.
Defendant, who had been waiting in the car the entire time, saw Backus' girlfriendhurry out of the building, place a call on her cell phone, enter her vehicle and drive away.According to defendant, he immediately "had a bad feeling" that "something wasn'tright" and, after waiting another minute or two, drove away—leaving Rouillebehind. A short time later, however, Rouille called defendant and, in response toRouille's request, defendant turned around and headed back towards theapartment—picking up Rouille en route. Defendant then drove to Rouille'sresidence, dropped him off and went to work. Video surveillance records from thegirlfriend's apartment complex depict the grey sedan arriving at the scene, Backus andRouille exiting the vehicle, Backus and Rouille being admitted into the building byBackus' girlfriend, the girlfriend hastily exiting the building and driving away, the greysedan—admittedly driven by defendant—pull away a short time later,Rouille exiting the building and leaving the scene on foot and Backus thereafter steppingoutside, presumably looking for his girlfriend.
The foregoing proof, in our view, is legally sufficient to sustain the charges at issue.Defendant indeed testified—and Backus readily confirmed—that defendantnever threatened Backus, displayed a gun or attempted to rob him, and it is clear from thetestimony and the video surveillance tapes that defendant never entered the apartmentbelonging to Backus' girlfriend or otherwise directly participated in the events thattranspired therein. That said, there nonetheless is ample proof from which the juryreasonably could infer that defendant shared Rouille's intent to commit the underlyingcrimes—despite the fact that defendant's participation was limited to being thegetaway driver (see People v Jackson, 44 NY2d 935, 937 [1978]; People vKeitt, 42 NY2d 926, 927 [1977]; People v Rupert, 118 AD3d at 1127;People v Gage, 259 AD2d 837, 838-839 [1999], lv denied 93 NY2d 924[1999]; compare People v Taylor, 141 AD2d 581, 581-582 [1988], lvdenied 72 NY2d 962 [1988]; People v Rivera, 62 AD2d 1005, 1005 [1978]).Specifically, defendant drove Rouille to the home of Backus' girlfriend (1) knowing thatBackus owed Rouille money, (2) after Rouille displayed a gun, and (3) after Rouilleinformed Backus—while in the car and in defendant's presence—that eitherhe would get his money or someone would get shot. More to the point, defendantremained at the premises—waiting for Rouille, who was armed with a gun, toemerge—until he saw Backus' girlfriend flee the scene. Even then, despite havingwitnessed what had transpired between Backus and Rouille in the car and thereafterbeing presented with circumstances suggesting that something was amiss at theapartment, defendant still heeded Rouille's subsequent request to turn around and returnto the scene in order to pick him up. Although defendant testified that Rouille neverthreatened to [*4]shoot Backus and that there was "neverno gun involved at all," this conflicting testimony presented a credibility issue for thejury to resolve (see People vHaardt, 129 AD3d 1322, 1323 [2015]). In any event, "strict liability for anaggravating circumstance"—such as the use of a firearm—"attaches to anaccomplice, regardless of his or her degree of intent, knowledge or conduct with respectto the aggravating circumstance" (People v Vicioso, 116 AD3d at 1251 [internalquotation marks, brackets and citation omitted]).
Finally, defendant's pro se claim—that the People deliberately solicitedimpermissible and prejudicial testimony from Backus on their case-in-chief—isunpreserved for our review as no objection thereto was made during the course of thetrial (see People v Williams,61 AD3d 1383, 1383 [2009], lv denied 13 NY3d 751 [2009]; see also People v Damato, 79AD3d 1060, 1060 [2010]) and, in any event, is lacking in merit. Accordingly, thejudgment of conviction is affirmed.
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:According to the People,Rouille previously pleaded guilty to undisclosed charges related to this incident.
Footnote 2:Backus testified that ittypically took him one week to secure the funds to pay Rouille, and he acknowledgedthat he had experienced difficulties paying Rouille in the past.
Footnote 3:The record suggests thatBackus' girlfriend also had purchased drugs from Rouille in the past and may have owedRouille money at this point in time.