| People v Murad |
| 2008 NY Slip Op 07934 [55 AD3d 754] |
| October 14, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GregoryMurad, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Jason R. Richards ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.),rendered August 14, 2006, convicting him of robbery in the first degree, robbery in the second degree,and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court did not err in its instructions to the jury regarding the lack of materiality of thedefendant's knowledge of whether an accomplice was in possession of, and intended to threaten thevictim with, a knife in the commission of the robbery. Where a defendant's guilt of robbery in the firstdegree "is predicated upon the forcible taking of property, coupled with the aggravating factor of anyparticipant in the crime being armed with a deadly weapon . . . the defendant's knowledgethat an accomplice was armed with a deadly weapon is not an element of robbery in the first degree"(People v Foster, 33 AD3d 814[2006]; see People v Garcia, 302 AD2d 474, 475 [2003]; People v Murdough, 287AD2d 658, 659 [2001]). In such a case, "lack of proof of the defendant's knowledge that a [deadlyweapon] would be used was immaterial" (People v Garcia, 302 AD2d at 475; see Peoplev Murdough, 287 AD2d at 659). Accordingly, the court correctly instructed the jurors that if theyfound, beyond a reasonable doubt, that the defendant "had the mental culpability required for thecommission of the crime of robbery, which is forcibly stealing," and that "another person involved in thiscrime of robbery use[d] or threaten[ed] the immediate use of a dangerous instrument," they should findthe defendant guilty, "even if [the defendant] did not know a dangerous instrument was to be used."[*2]
Likewise, there is no merit to the defendant's contention thatthe court erred in its Sandoval ruling (see People v Sandoval, 34 NY2d 371 [1974])."[T]he extent to which the prosecution should be allowed to impeach the credibility of a defendant is amatter that is generally left to the sound discretion of the trial court" (People v Carrasquillo, 204AD2d 735, 735 [1994]; see People v Bennette, 56 NY2d 142, 146 [1982]; People vJohnston, 186 AD2d 822 [1992]). Here, the trial court's Sandoval compromise permittingthe People to inquire only whether the defendant had been convicted of a nonviolent felony outside thejurisdiction of the State of New York, but precluding any questioning about the underlying facts,avoided any undue prejudice to the defendant and represented a provident exercise of the court'sdiscretion (see People v Jamison, 303 AD2d 603 [2003]; People v Carrasquillo, 204AD2d at 735; People v Ricks, 135 AD2d 844, 845 [1987]; People v Scott, 118AD2d 881, 882 [1986]).
The defendant's claim that the court should have set forth its reasoning and the balancing process inwhich it engaged in reaching the Sandoval ruling is not preserved for appellate review. In anyevent, "[o]ur law does not require the application of any particular balancing process in Sandovaldeterminations . . . Similarly, an exercise of a trial court's Sandoval discretionshould not be disturbed merely because the court did not provide a detailed recitation of its underlyingreasoning" (People v Walker, 83 NY2d 455, 459 [1994] [internal quotation marks andcitations omitted]; see People v Gray, 84 NY2d 709, 712 [1995]; People v Ellis, 183AD2d 534, 535 [1992], affd 81 NY2d 854 [1993]).
The defendant's contention that certain oral statements he made at the time of his arrest should havebeen suppressed is academic in light of the fact that those statements were not introduced at trial (see People v Menendez, 50 AD3d1061 [2008], lv denied 10 NY3d 937 [2008]; People v Nevins, 16 AD3d 1046 [2005], cert denied 548 US911 [2006]; People v Musmacher, 133 AD2d 352, 353 [1987]).
The record reveals that the defendant was provided with effective assistance of counsel throughoutthe proceedings (see People v Caban, 5NY3d 143, 152 [2005]; People vStultz, 2 NY3d 277, 287 [2004]; People v Benevento, 91 NY2d 708 [1998]).
The defendant's Brady argument (see Brady v Maryland, 373 US 83 [1963]) isunpreserved for appellate review (see CPL 470.05 [2]; People v Higgins, 298 AD2d529, 530 [2002]) and, in any event, is without merit (see People v Vilardi, 76 NY2d 67, 73[1990]; People v Moore, 43 AD3d1085 [2007]; People v Bryant, 247 AD2d 400, 401 [1998]; People v Figueroa,213 AD2d 669 [1995]).
Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).There is no merit to the defendant's contention that, because his sentence for robbery in the first degreeis seven years, instead of the five years imposed on his codefendants as part of their plea bargain, hewas penalized for choosing to exercise his right to go to trial. "It is not now to be questioned that a Statemay encourage a guilty plea by offering substantial benefits, notwithstanding the fact that every suchinstance is bound to have the concomitant effect of discouraging a defendant's assertion of his trialrights. Given that the quid pro quo of the bargaining process will almost necessarily involveoffers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentenceshanded out after trial may be more severe than those proposed in connection with a plea" (People vPena, 50 NY2d 400, 411-412 [1980], cert denied 449 US 1087 [1981] [citationsomitted]; see Corbitt v New Jersey, 439 US 212, 219-221 [1978]; Bordenkircher vHayes, 434 US 357, 364 [1978]). Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.