| People v McFadden |
| 2011 NY Slip Op 08673 [90 AD3d 413] |
| Dcmbr 1, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v BrianMcFadden, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ethan Greenberg, J.), rendered July 6, 2009,convicting defendant, after a jury trial, of robbery in the first degree, attempted robbery in thesecond degree, and criminal possession of stolen property in the third and fourth degrees, andsentencing him, as a persistent violent felony offender, to an aggregate term of 43½ years tolife, unanimously modified, as a matter of discretion in the interest of justice, to the extent ofreducing the sentence on the first-degree robbery conviction to 20 years to life and directing thatall sentences run concurrently, resulting in a new an aggregate term of 20 years to life, andotherwise affirmed.
The verdict was not repugnant, and the court properly denied defendant's application toresubmit the case to the jury. This case involves an attempted carjacking, followed a few minuteslater by a completed carjacking. Four days later, the police apprehended defendant and hiscodefendant while they were in the stolen car.
The only property taken in the completed carjacking was the car. The jury convicteddefendant of first-degree robbery, but acquitted him of second-degree robbery under a provision(Penal Law § 160.10 [3]) that required a finding that the property stolen was a motorvehicle as defined in Vehicle and Traffic Law § 125. The jury also convicted defendant oftwo counts of criminal possession of stolen property, one of which similarly required a findingthat the property was a motor vehicle (see Penal Law § 165.45 [5]). Even if theverdicts appear illogical under the facts of the case, they were not legally repugnant.
The acquittal on the second-degree robbery charge was not conclusive as to any necessaryelement of any of the convictions (see People v Tucker, 55 NY2d 1, 7 [1981]). "If there isa possible theory under which a split verdict could be legally permissible, it cannot be repugnant,regardless of whether that theory has evidentiary support in a particular case" (People v Muhammad, 17 NY3d532, 540 [2011]). Regardless of whether a verdict is illogical under the evidence presented,"factual repugnancy—which can be attributed to mistake, confusion, compromise ormercy—does not provide a reviewing court with the power to overturn a verdict"(id. at 545).
The verdict was based on legally sufficient evidence and was not against the weight of the[*2]evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's determinations concerning identification and credibility. Withregard to the attempted robbery, the totality of defendant's conduct supports the inference ofaccessorial liability (see e.g. Matter of Wade F., 49 NY2d 730 [1980]; Matter of MarcH., 284 AD2d 211 [2001]; Matter of Devin R., 254 AD2d 221 [1998]).
The court properly denied defendant's motion to suppress identification testimony. Thelineup was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], certdenied 498 US 833 [1990]). The photographs of the lineup, although of poor quality, wereadequate to show that the lineup did not in any way single out defendant. In particular, thehearing evidence supports the court's finding that the disparity between the recorded ages ofdefendant and the fillers was not reflected in their physical appearances (see People v Amuso, 39 AD3d425, 425-426 [2007], lv denied 9 NY3d 862 [2007]). There is no evidence that thewitnesses influenced each other's identifications. We have considered and rejected defendant'sremaining arguments regarding the lineup.
Defendant's constitutional challenge to his sentencing as a persistent violent felony offenderis without merit (see Almendarez-Torres v United States, 523 US 224 [1998]; People v Bell, 15 NY3d 935, 936[2010]).
We find the sentence excessive to the extent indicated. Concur—Tom, J.P., Andrias,Catterson, Abdus-Salaam and RomÁn, JJ.