| People v Reed |
| 2012 NY Slip Op 05464 [97 AD3d 1142] |
| July 6, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lance J. Reed,Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedDecember 9, 2008. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and robbery in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [3] [felony murder]) and two counts ofrobbery in the first degree (§ 160.15 [1], [2]). Defendant contends that the evidence islegally insufficient to establish an essential element of the robbery counts, i.e., that he or one ofhis accomplices stole property, and thus it is legally insufficient with respect to those counts. Hefurther contends that the felony murder conviction must also be reversed due to the legalinsufficiency of the evidence with respect to the robbery counts. We reject those contentions.
"A person is guilty of robbery in the first degree when he forcibly steals property and when,in the course of the commission of the crime or of immediate flight therefrom, he or anotherparticipant in the crime . . . [c]auses serious physical injury to any person who is nota participant in the crime; or . . . [i]s armed with a deadly weapon" (Penal Law§ 160.15 [1], [2]). Insofar as relevant here, felony murder is committed when defendant,"[a]cting either alone or with one or more other persons, . . . commits or attempts tocommit robbery . . . , and, in the course of and in furtherance of such crime or ofimmediate flight therefrom, he, or another participant, if there be any, causes the death of aperson other than one of the participants" (§ 125.25 [3]). Contrary to defendant'scontentions, the evidence is legally sufficient to support the conviction of robbery and murder.
"It is well settled that, even in circumstantial evidence cases, the standard for appellatereview of legal sufficiency issues is 'whether any valid line of reasoning and permissibleinferences could lead a rational person to the conclusion reached by the [factfinder] on the basisof the evidence at trial, viewed in the light most favorable to the People' " (People vHines, 97 NY2d 56, 62 [2001], rearg denied 97 NY2d 678 [2001]). Here, weconclude that the evidence at trial could lead a rational person to the conclusion reached by thejury (see People v Hernandez, 79 AD3d [*2]1683, 1683[2010], lv denied 16 NY3d 895 [2011]; see generally People v Bleakley, 69NY2d 490, 495 [1987]). Several eyewitnesses testified that they heard the gunshots that killedthe victim and observed a vehicle, which they described, drive away from the scene. Otherwitnesses identified defendant as the operator of that vehicle, the vehicle was found near hissister's apartment, and defendant's sister testified that he appeared disheveled when he arrived ather apartment shortly after the time at which the shooting occurred. An eyewitness to theshooting testified that the shooter bent over the victim immediately after the shooting, andseveral witnesses testified that the shooter then left in the vehicle with defendant. In addition, thevictim's girlfriend testified that, approximately 30 minutes before the shooting, she placed$40,000 in cash in a plastic grocery bag, used a distinctive double knot to close the bag, and thengave it to the victim to buy drugs. At the police station a few days after the shooting, the victim'sgirlfriend identified a bag as the one that held the cash, and police officers testified that theyrecovered it from under the driver's armrest of the vehicle that defendant drove from the scene.The victim's girlfriend indicated that the bag still had the same distinctive double knot at the top,although the bottom had been torn open and the bag was empty. Photographs of the bag, whichwere received in evidence, depict the bag's distinctive double knot and torn bottom.
It has long been the law in New York that evidence establishing that a defendant possessed awrapper or container that had held property before it was stolen is sufficient to support aconviction for stealing that property (see People v Sasso, 99 AD2d 558, 559 [1984];People v Block, 15 NYS 229, 230 [Sup Ct, Gen Term, 1st Dept 1891]; see alsoPeople v Baskerville, 60 NY2d 374, 379 [1983]). Consequently, "[t]his evidence, althoughcircumstantial, was nevertheless more than sufficient to lead a reasonable person to conclude thatdefendant" or one of his accomplices stole the cash from the victim (People v Radoncic,239 AD2d 176, 179 [1997], lv denied 90 NY2d 897 [1997]). The evidence alsoestablishes that the victim was shot and killed while that cash was being taken from him, thusproviding legally sufficient evidence with respect to the remaining elements of the charges ofwhich defendant was convicted.
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is contrary to theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Although an acquittalwould not have been unreasonable, it cannot be said that the jury failed to give the evidence theweight it should be accorded (see generally Danielson, 9 NY3d at 348; Bleakley,69 NY2d at 495).
All concur except Fahey and Martoche, JJ., who dissent and vote to reverse in accordancewith the following memorandum.
Fahey and Martoche, JJ. (dissenting). We respectfully dissent and would reverse thejudgment, dismiss the indictment and remit the matter to County Court for proceedings pursuantto CPL 470.45. In our view, the evidence is legally insufficient to support the conviction, and theverdict is against the weight of the evidence.
We first turn to the issue of legal sufficiency. "It is well settled that, even in circumstantialevidence cases, the standard for appellate review of legal sufficiency issues is whether any validline of reasoning and permissible inferences could lead a rational person to the conclusionreached by the [factfinder] on the basis of the evidence at trial, viewed in the light most favorableto the People" (People v Weakfall,87 AD3d 1353, 1353 [2011], lv denied 18 NY3d 862 [2011] [internal quotationmarks omitted]). "[W]hen the evidence is circumstantial the jury[, as it was in this case,] shouldbe instructed in substance that it must appear that the inference of guilt is the only one that canfairly and reasonably be drawn from the facts, and that the evidence excludes beyond areasonable doubt every reasonable hypothesis of innocence" (People v Sanchez, 61 NY2d1022, 1024 [1984]; see People vBrown, 23 AD3d 1090, 1092-1093 [2005], lv denied 6 NY3d 810 [2006]).Inasmuch as " 'the robbery was the underlying felony for [the] count of felony murder[, it] [*3]constituted a material element of that offense' " (People v Dennis, 91 AD3d 1277,1280 [2012]). "[T]he essential elements of the underlying felony must be proven beyond areasonable doubt in order for a conviction of felony murder to be justified" (People vSimon, 119 AD2d 602, 603 [1986]; see generally People v Hubbert, 212 AD2d 633,634 [1995]), which is consistent with the court's jury charge herein that "there must be a robberybefore [defendant] can be found guilty [of murder]."
Here, the victim was shot three times at close range in broad daylight on a public street inRochester. None of the seven eyewitnesses to the shooting saw the assailant or an accomplice ofthe assailant take anything from the victim at the time of the shooting. Eyewitnesses did,however, see a Lincoln automobile (hereafter, Lincoln) driving away from the scene of theshooting, and that vehicle was located and secured by the police the next day. The interior of theLincoln was, as defense counsel aptly noted on summation, "in [a] state of disarray" at that time,and in that vehicle the police discovered various grocery items, including "one or two packagesof sausage biscuits," an empty Snapple bottle, and a number of lottery tickets. Police also tookfrom the Lincoln a plastic Tops supermarket bag, the handles of which were knotted and thebottom of which appeared to have been "ripped out." No fingerprints or bodily fluids were foundon the bag, nor was any hair. Moreover, defense counsel noted on summation, without objection,that there are "thousands, tens of thousands of Tops bags in [Rochester]," some of which wereeven carried by jurors during the trial.
The victim's girlfriend did not mention the supermarket bag at the inception of the policeinvestigation, but disclosed its existence when she met with the police at police headquarters theday after the shooting. She was shown the supermarket bag recovered from the Lincoln, and shestated that she believed that the bag was the same bag in which she had placed $40,000 in cashthat was wrapped with "colorful rubber bands." According to the victim's girlfriend, the cash hadbeen tied with the rubber bands in preparation for the victim's anticipated purchase of drugs,shortly before his death. The only uncommon characteristic of the supermarket bag is the mannerin which it was knotted, and the testimony of the victim's girlfriend is unclear as to the manner inwhich it was tied. We respectfully disagree with the majority's conclusion that the subject bagwas distinctively knotted. Moreover, we respectfully note that none of the "colorful rubberbands" used to wrap the cash that the majority believes to have been stolen from the victim werefound in the Lincoln.
"Under the facts elicited at the trial, there was no rational basis upon which the jury couldhave found that there was a forcible taking of property" (Simon, 119 AD2d at 604).Inasmuch as the supermarket bag at issue is a common item, "it cannot be reasonably concludedthat the [supermarket bag found in the Lincoln] was the same [bag] possessed by the victim[shortly before his death]" (id.). As noted herein, none of the seven eyewitnesses to theshooting—many of whom also saw the assailant's departure from the area of theshooting—saw the taking of property from the victim. Moreover, none of those witnessessaw anyone walk from the vicinity of the victim's body carrying anything other than a gun.Indeed, there was no evidence that anyone was seen leaving the area of the victim's body withproperty belonging to the victim, and we thus conclude that the evidence is legally insufficient toestablish that a robbery occurred (see id. at 603-604; see generally People v Bass,277 AD2d 488, 495 [2000], lv denied 96 NY2d 780 [2001]). Consequently, we wouldreverse the judgment convicting defendant of robbery as well as felony murder, which ispremised upon the commission of the robbery, given the lack of legally sufficient evidence of theunderlying felony.
Even assuming, arguendo, that the evidence is legally sufficient to support the conviction, wefurther conclude that, viewing the evidence in light of the elements of the crimes as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), the verdict is against the weight of the evidence for the reasons setforth above (see generally People v Bleakley, 69 NY2d 490, 495 [1987]; cf. [*4]Bass, 277 AD2d at 496-497). Present—Scudder, P.J.,Smith, Fahey, Lindley and Martoche, JJ.