| People v Farkas |
| 2012 NY Slip Op 04775 [96 AD3d 873] |
| June 13, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Isidore Farkas, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Rossof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered August 10, 2011, convicting him of robbery in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the facts, the conviction of robbery in the seconddegree and the sentence imposed thereon are vacated, that count of the indictment is dismissed,and the matter is remitted to the Supreme Court, Kings County, for further proceedings on thecount of the indictment charging assault in the third degree.
On August 18, 2005, the complainant, a consulting engineer who had been hired by a thirdparty, was inspecting and photographing certain real property in Brooklyn. The defendant, whoowned the property, and his wife arrived at the location, and the defendant confronted thecomplainant. The defendant and the complainant engaged in a scuffle. According to thecomplainant, the defendant punched him several times and forcibly pulled his camera from hishand as he attempted to photograph the defendant's license plate. Conversely, according to thedefendant's wife, the defendant put up his hand to defend himself from the complainant, thecamera ricocheted off of the defendant's hand and struck the complainant in the eye, and whenthe camera fell to the ground, she placed it in the back seat of the defendant's vehicle. At trial, ajury acquitted the defendant of robbery in the first degree, convicted him of robbery in the seconddegree, and, in accordance with the court's instructions, did not consider the remaining countswhich had been submitted to it.
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt ofrobbery in the second degree beyond a reasonable doubt.[*2]
However, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Delamota, 18 NY3d 107,116-117 [2011]; People v Romero,7 NY3d 633 [2006]), we find that the verdict of guilt of robbery in the second degree wasagainst the weight of the evidence. "[W]eight of the evidence review requires a court first todetermine whether an acquittal would not have been unreasonable. If so, the court must weighconflicting testimony, review any rational inferences that may be drawn from the evidence andevaluate the strength of such conclusions. Based on the weight of the credible evidence, the courtthen decides whether the jury was justified in finding the defendant guilty beyond a reasonabledoubt" (People v Danielson, 9NY3d 342, 348 [2007]; see People v Bleakley, 69 NY2d 490 [1987]). "Essentially,the court sits as a thirteenth juror and decides which facts were proven at trial" (People vDanielson, 9 NY3d at 348). Here, the jury's determination that the evidence presented by thePeople established the defendant's larcenous intent was against the weight of the credibleevidence (see generally People vMedina, 18 NY3d 98, 104-105 [2011]; People v Jennings, 69 NY2d 103, 118[1986]). Therefore, the conviction of robbery in the second degree must be vacated.
The jury was instructed not to consider a number of counts if it found the defendant guilty ofrobbery in the first degree or robbery in the second degree. Since the count of assault in the thirddegree was submitted to the jury but was not considered because the jury found the defendantguilty of robbery in the second degree, retrial on the count of assault in the third degree wouldnot violate double jeopardy principles (see People v Charles, 78 NY2d 1044, 1047[1991]; People v David, 95 AD3d1031 [2012]). The count of the indictment charging the defendant with robbery in the thirddegree, as an inclusory concurrent count of robbery in the second degree (see People v Coleman, 37 AD3d489, 490 [2007]), was deemed dismissed as a result of the conviction of robbery in thesecond degree (see CPL 300.40 [3] [b]). With respect to the remaining counts that weresubmitted to the jury, the defendant may not be retried on the charges of grand larceny in thefourth degree or criminal possession of stolen property in the fourth degree, as a verdict of guilton those counts would require or depend upon a finding of larcenous intent. We also note that,since the Supreme Court did not submit the counts charging petit larceny and menacing in thethird degree to the jury, those counts are deemed to have been dismissed (see CPL 300.40[7]). Accordingly, we remit the matter to the Supreme Court, Kings County, for furtherproceedings only on the count of the indictment charging assault in the third degree.
In light of our determination, we need not reach the defendant's remaining contentions.Rivera, J.P., Dickerson, Leventhal and Cohen, JJ., concur.