| People v Bush |
| 2010 NY Slip Op 06187 [75 AD3d 917] |
| July 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James F.Bush, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Dowd, J.), rendered December 11,2008 in Chenango County, upon a verdict convicting defendant of the crimes of burglary in thefirst degree (two counts), criminal use of a firearm in the first degree, attempted robbery in thefirst degree and criminal use of a firearm in the second degree.
Defendant was charged with acting in concert with a friend after driving him to the home ofa known drug dealer (hereinafter the victim) and waiting outside while the friend kicked in thevictim's front door and fired a sawed-off shotgun. The friend was then shot to death by thevictim. Defendant did not deny taking the friend to the victim's home, but asserted that hebelieved that the friend planned only to buy drugs from the victim. The jury rejected this defenseand convicted defendant, as an accomplice, of two counts of burglary in the first degree, criminaluse of a firearm in the first degree, attempted robbery in the first degree and criminal use of afirearm in the second degree. Supreme Court sentenced defendant to an aggregate prison term of15 years followed by five years of postrelease supervision.
On appeal, defendant contends that the evidence was legally insufficient to support theinference that he was criminally liable for his friend's conduct. "The standard of review on achallenge for legal sufficiency is whether 'viewed in the light most favorable to the People, thereexists a valid line of reasoning and permissible inferences from which a rational juror could[*2]conclude that each of the elements of the subject chargesupon which defendant was convicted were established beyond a reasonable doubt' " (People v Alteri, 49 AD3d 918,919 [2008], quoting People vRichardson, 28 AD3d 1002, 1004 [2006], lv denied 7 NY3d 817 [2006]). Indefining accomplice liability, Penal Law § 20.00 provides that "[w]hen one personengages in conduct which constitutes an offense, another person is criminally liable for suchconduct when, acting with the mental culpability required for the commission thereof, he [or she]solicits, requests, commands, importunes, or intentionally aids such person to engage in suchconduct" (see People v Flayhart, 72 NY2d 737, 741 [1988]; People v Daniels, 24 AD3d 970,971 [2005], lv denied 6 NY3d 811 [2006]). To support a conviction based on accompliceliability, the evidence must demonstrate that a defendant "share[d] the intent or purpose of theprincipal actor" (People v Kaplan, 76 NY2d 140, 144 [1990] [internal quotation marksand citations omitted]). Mental culpability, however, may be inferred from a defendant's conductand from the surrounding circumstances (see People v Valderrama, 285 AD2d 902, 903[2001], lv denied 97 NY2d 659 [2001]).
Here, the evidence supporting defendant's role as an accomplice included proof that he knewthat the victim had been robbed on three prior occasions and might have as much as $100,000 athis home. Defendant telephoned the victim in the afternoon and learned that he would be homeafter 8:00 p.m. that evening. Defendant then picked up the friend and brought him to defendant'shome, where defendant's neighbor testified that he saw defendant and the friend arrive at around5:00 p.m. There was evidence that the friend and defendant fired defendant's shotgun, one ofthem sawed off the barrel and the friend changed his clothing by taking off a leather jacket andputting on a dark, hooded sweatshirt. The friend then put on a backpack containing items thatcould be used as burglary tools and that were similar to items found at defendant's residence, andthe two men left on defendant's motorcycle, taking back roads to the home of the victim wherethey arrived shortly after 9:30 p.m. Before entering the victim's home, the friend put a scarf overhis face, donned white latex gloves and readied the gun. This evidence supports the inferencethat defendant was aware of the opportunity, planned the crime, armed his friend, had himpractice firing the weapon at his own premises, dressed and equipped him for a home invasion,and delivered him to the scene. Viewing this evidence in the light most favorable to the People, arational juror could find beyond a reasonable doubt that defendant acted with the state of mindrequired for the commission of the crimes of which he was convicted and intentionally aided thefriend in engaging in that criminal conduct (see People v Hatch-Green, 20 AD3d 581, 583 [2005], lvdenied 5 NY3d 828 [2005]; People v Durham, 248 AD2d 820, 821-822 [1998],lv denied 91 NY2d 972 [1998]).
Since a different verdict would not have been unreasonable, we also "must, like the trier offact below, 'weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony' " (People v Bleakley, 69NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62[1943]; accord People v Romero, 7NY3d 633, 645-646 [2006]). While defendant's counsel brought out some inconsistencies inthe testimony of the People's witnesses and presented one witness who testified that someonehad stolen defendant's shotgun, other evidence established that defendant and the friend were inpossession of the shotgun and practiced with it just before going to the victim's home. Uponweighing the proof and according deference to the jury's credibility determinations, we are notpersuaded that the verdict was against the weight of the evidence (see People v Bleakley,69 NY2d at 495; People v Glanda,5 AD3d 945, 949 [2004], lvs denied 3 NY3d 640, 674 [2004]; People vWilliams, 284 AD2d 564, 568 [2001], lv denied 96 NY2d 909 [2001]; People vDurham, 248 AD2d at 822).[*3]
Defendant's remaining contentions are also unpersuasive.He was not denied a fair trial when one of the People's witnesses used a slang expression thatmay have suggested that defendant had previously been incarcerated. The witness's mention thatdefendant "was doing a bid" was inadvertent, fleeting and not likely to be understood by the jury.In any event, Supreme Court gave an immediate and appropriate curative instruction. Next, amug shot photograph of defendant was briefly placed on a table containing other items inevidence near the jury box before defense counsel asked that it be turned over so that it could notbe seen. It was not circulated, however, and there is no indication that the jury actually saw itbefore the court eventually revoked its admission into evidence. Regarding the prosecutor's fewcomments during summation about points of law, defendant does not claim that they wereinaccurate or misleading, but only that they usurped the court's role (see People v Bryan, 46 AD3d1219, 1221 [2007], lv denied 10 NY3d 809 [2008]). Any impropriety, however, wasalleviated by the court's own instructions to the jury (see People v Barnes, 80 NY2d 867,868 [1992]). Defendant's further contention that he was entitled to an interested witnessinstruction concerning the victim's testimony is unpreserved by his failure to request it (seePeople v Siler, 288 AD2d 625, 628 [2001], lv denied 97 NY2d 709 [2002]).
Finally, the record provides no support for defendant's argument that the sentence wasenhanced because he chose to proceed to trial rather than plead guilty. Given defendant'sextensive criminal history and lack of remorse regarding his role in these violent crimes, thesentence imposed was not an abuse of Supreme Court's discretion and there are no extraordinarycircumstances that would cause us to reduce it on the ground that it is harsh or excessive (see People v Welch, 71 AD3d1329, 1332 [2010]; People vMassey, 45 AD3d 1044, 1048 [2007], lv denied 9 NY3d 1036 [2008]; People v Ballard, 38 AD3d 1001,1004 [2007], lv denied 9 NY3d 840 [2007]; People v Barnes, 219 AD2d 527,527-528 [1995], lv denied 87 NY2d 919 [1996]).
Cardona, P.J., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.