| People v Coble |
| 2012 NY Slip Op 03309 [94 AD3d 1520] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Duane Coble,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered July 7,2010. The judgment convicted defendant, upon a nonjury verdict, of burglary in the seconddegree and robbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of burglary in the second degree under count two ofthe indictment and dismissing that count, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof burglary in the second degree (Penal Law § 140.25 [1] [d]) and robbery in the seconddegree (§ 160.10 [2] [b]). At the conclusion of the trial, County Court found twocodefendants guilty of burglary in the second degree as a lesser included offense of burglary inthe first degree (§ 140.30 [1]) as charged in the second count of the indictment. Inrendering its verdict, however, the court failed to dispose of that count of the indictment withrespect to defendant. Notwithstanding that failure, the court sentenced defendant on,inter alia, a conviction of burglary in the second degree. As the People correctly concede, thecourt's failure to dispose of the second count "constitute[d] a verdict of not guilty with respect to. . . [that] count" (CPL 350.10 [5]). We therefore agree with defendant that he wasacquitted of burglary in the first degree and all lesser included offenses thereof, and we modifythe judgment accordingly.
Defendant's further contention that the testimony of one of the complainants should havebeen precluded because she violated the order excluding certain witnesses from observing thetrial and that the court's failure to preclude that testimony deprived him of a fair trial is notpreserved for our review (see CPL 470.05 [2]). In any event, that contention iswithout merit. "It was in the trial court's discretion to grant an order excludingwitnesses from observing the trial, and the fact that a witness might have disobeyed such orderdoes not disqualify the witness from testifying" (People v Rivera, 182 AD2d 1092,1092-1093 [1992], lv denied 80 NY2d 896 [1992]; see also People v Palmer, 272AD2d 891, 891 [2000]). "[W]here a witness violates an order of exclusion, he or she is subject tocourt-imposed sanctions[,] the severity of which are committed to the sound discretion of thetrial court. And while the sanction may include precluding the witness from [*2]testifying, such sanction clearly is the most drastic available andwould be appropriate only in the most egregious circumstances" (People v Brown, 274AD2d 609, 610 [2000]). We conclude that the court did not abuse its discretion in permitting thecomplainant in question to testify, especially when she was cross-examined concerning heralleged violation of the order of exclusion and the court was permitted to consider that violationin assessing her credibility (see generally Palmer, 272 AD2d at 891).
Defendant contends that the evidence is legally insufficient to support the conviction ofrobbery in the second degree because he was charged as a principal rather than as an accessoryand the evidence failed to establish that he acted as a principal. We reject that contention."It is well established that liability as a principal or an accomplice is not an element of thecrime charged and that the People may charge defendant as a principal but establish his guilt asan accomplice" (People v Jackson, 286 AD2d 946, 946 [2001], lv denied 97NY2d 683 [2001]; see People v Rivera, 84 NY2d 766, 769-770 [1995]; People vDuncan, 46 NY2d 74, 79-80 [1978], rearg denied 46 NY2d 940 [1979], certdenied 442 US 910 [1979], rearg dismissed 56 NY2d 646 [1982]). In any event, theevidence is legally sufficient to establish that defendant committed robbery in the second degreeas a principal (see generally People vDanielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495[1987]).
Viewing the evidence in light of the elements of the crime of robbery in the second degree inthis nonjury trial (see Danielson, 9 NY3d at 349), we reject defendant's further contentionthat the verdict with respect to that crime is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). " 'Issues of credibility . . . , including the weight tobe given the backgrounds of the People's witnesses and inconsistencies in their testimony, wereproperly considered by the [court as the trier of fact] and there is no basis for disturbing itsdeterminations' " (People v Rogers,70 AD3d 1340, 1340 [2010], lv denied 14 NY3d 892 [2010], cert denied 562US —, 131 S Ct 475 [2010]; see generally Bleakley, 69 NY2d at 495). Further, theinconsistencies in the witnesses' testimony raised by defendant on appeal do not render theirtestimony incredible as a matter of law (see People v Nilsen, 79 AD3d 1759, 1760 [2010], lv denied16 NY3d 862 [2011]; cf. People v Wallace, 306 AD2d 802, 802-803 [2003]).
Defendant's contention that the court erred in considering robbery in the second degree as alesser included offense of robbery in the first degree (Penal Law § 160.15 [2]) and inconvicting him of the lesser included offense is waived inasmuch as defendant failed to make atimely objection with respect thereto (see People v Ford, 62 NY2d 275, 282-283[1984]; People v Smith, 13 AD3d1121, 1122-1123 [2004], lv denied 4 NY3d 803 [2005]). Present—Smith, J.P.,Lindley, Sconiers and Martoche, JJ.