| People v Ali |
| 2011 NY Slip Op 07984 [89 AD3d 1417] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v SaleemK. Ali, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered August8, 2007. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree, assaultin the second degree, attempted robbery in the first degree, burglary in the second degree, and criminalpossession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law byreversing that part convicting defendant of burglary in the second degree and dismissing count four ofthe indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia,burglary in the first degree (Penal Law § 140.30 [2]), assault in the second degree (§120.05 [6]), attempted robbery in the first degree (§§ 110.00, 160.15 [1]), and burglaryin the second degree (§ 140.25 [2]). Contrary to defendant's contention, County Court properlyrefused to charge burglary in the second degree (§ 140.25 [2]) as a lesser included offense ofburglary in the first degree (§ 140.30 [2]). "No reasonable view of the evidence supports afinding that defendant committed the lesser offense[ ] but not the greater" (People v Lockett, 1 AD3d 932, 933[2003], lv denied 1 NY3d 630 [2004]; see generally People v Glover, 57 NY2d 61,63 [1982]). As the People correctly concede, however, defendant's conviction under count four of theindictment, charging him with burglary in the second degree, must be reversed and that count dismissedbecause it is a lesser inclusory concurrent count of count one, charging defendant with burglary in thefirst degree, of which he was convicted (seePeople v Coleman, 82 AD3d 1593, 1595 [2011], lv denied 17 NY3d 793 [2011]).We therefore modify the judgment accordingly.
We further conclude that there is no merit to defendant's contention that his conviction of assault inthe second degree (Penal Law § 120.05 [6]) should be reversed and that count dismissedpursuant to CPL 300.40 (3) (b) as a lesser inclusory concurrent count of burglary in the first degree(Penal Law § 140.30 [2]), of which he was convicted. The instant charge of assault requiresevidence of the infliction of physical injury "in furtherance of" the commission of the underlying felony ofburglary, and such evidence is not required for the burglary conviction. Thus, the assault was not alesser included offense of the burglary (see People v Curella, 296 [*2]AD2d 578, 579 [2002]). We note that our conclusion is consistent withthe decision of the Court of Appeals in People v Abrew (95 NY2d 806 [2000]). There, thedefendant was convicted of assault in the first degree under Penal Law § 120.10 (4), whichrequires that the defendant or another participant cause serious physical injury to a person other thanone of the participants "[i]n the course of and in furtherance of the commission or attemptedcommission of a felony or of immediate flight therefrom" (emphasis added). The defendant also wasconvicted of robbery in the first degree, which requires proof that a defendant or another participant inthe crime cause serious physical injury to a nonparticipant "[i]n the course of the commission of thecrime or of immediate flight therefrom," but does not require that the infliction of serious physical injuryhave been in furtherance of the commission of the robbery (§ 160.15 [1]; seeAbrew, 95 NY2d at 808-809). The Court in Abrew thus determined that section 120.10(4) was not an inclusory concurrent count of robbery in the first degree under Penal Law §160.15 (1) (id.). To the extent that the prior decision of this Court in People v Rodrigues (74 AD3d 1818[2010], lv denied 15 NY3d 809 [2010], cert denied 562 US —, 131 S Ct1505 [2011]) suggests a rule to the contrary, we note that the decision in that case was based on anincorrect concession by the People and did not address the distinction drawn in Abrew. Wethus conclude that Rodrigues and earlier cases decided without reference to Abrewshould no longer be followed. Contrary to defendant's further contention, in the contextof this case, assault in the second degree (§ 120.05 [6]) is not an inclusory concurrent count ofattempted robbery in the first degree (§§ 110.00, 160.15 [1]).
Defendant failed to preserve for our review his contention that his conviction of attempted robberyin the first degree is not supported by legally sufficient evidence inasmuch as the People failed toestablish the element of serious physical injury (see People v Gray, 86 NY2d 10, 19 [1995]),and in any event that contention is without merit (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Based on the evidence at trial, there is a valid line of reasoning and permissibleinferences that could lead a rational person to the conclusion reached by the jury, i.e., that defendantcaused one of the victims of the attempted robbery to sustain a serious physical injury (see People v Brown, 67 AD3d 1427,1428 [2009], lv denied 14 NY3d 839 [2010]; see generally Bleakley, 69 NY2d at495). Moreover, inasmuch as we have concluded that the evidence is legally sufficient to support theconviction of attempted robbery, there is no merit to defendant's further contention that he was deniedeffective assistance of counsel based on defense counsel's failure to make a specific motion for a trialorder of dismissal with respect to that count (see People v Washington, 60 AD3d 1454, 1455 [2009], lvdenied 12 NY3d 922 [2009]).
Defendant failed to object to the alleged repugnancy of the verdict before the jury was dischargedand thus failed to preserve for our review his further contention that the verdict is repugnant insofar asthe jury found him guilty of attempted robbery in the first degree and acquitted him of assault in the firstdegree under Penal Law § 120.10 (4) (see People v Alfaro, 66 NY2d 985, 987[1985]; People v Roman, 85 AD3d1630, 1630-1631 [2011], lv denied 17 NY3d 821 [2011]). In any event, that contentionlacks merit (see generally People v Tucker, 55 NY2d 1, 6-7 [1981], rearg denied 55NY2d 1039 [1982]), and we thus also "reject the contention of defendant that he was denied effectiveassistance of counsel based on defense counsel's failure to object to the verdict on the ground that itwas repugnant" (People v Henderson, 78AD3d 1506, 1507 [2010], lv denied 16 NY3d 743 [2011]; see Roman, 85AD3d at 1631). Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Centra, Fahey, Peradotto and Lindley, JJ.