| People v Allen |
| 2013 NY Slip Op 01660 [104 AD3d 1170] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Anthony J. Allen, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.),rendered December 10, 2010. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree (two counts), burglary in the second degree (two counts)and robbery in the first degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of two counts each of murder in the second degree (Penal Law § 125.25[3] [felony murder]), burglary in the second degree (§ 140.25 [1] [b], [c]), androbbery in the first degree (§ 160.15 [1], [3]). The conviction arises out of anincident during which defendant, who resided in a group home for juveniles, killed astaff member at the group home by striking her in the head multiple times with a tableleg. Defendant then broke into the staff office of the group home and stole money andcar keys, among other items. Defendant, his codefendant, and a third resident of thegroup home fled in a van belonging to the group home before being apprehended at abus station.
We reject defendant's contention that County Court erred in failing to suppress hisstatement to the police. The testimony of the police officer who interviewed defendantfollowing his apprehension, which was consistent with a videotape of the interview,established that defendant was properly advised of his Miranda rights and that hevoluntarily waived them before giving a statement to the police (see People vNinham, 174 AD2d 1043, 1043-1044 [1991]).
We reject defendant's further contention that the court erred in constructivelyamending the indictment to charge that defendant not only acted in concert with a namedcodefendant, but also that he may have acted in concert with "others" (see People vChristie, 210 AD2d 497, 497 [1994]; see also People v Dorfeuille, 91 AD3d 1023, 1023-1024[2012], lv denied 19 NY3d 996 [2012]; People v Roseboro, 182 AD2d784, 785 [1992]). Defendant's contention that the amendment changed the theory of theprosecution is erroneous inasmuch as "[w]hether a defendant is charged as a principal oran accomplice to a crime has no bearing on the theory of the prosecution" (People vRivera, 84 NY2d 766, 769 [1995]; see People v Duncan, 46 NY2d 74, 79-80[1978], rearg denied 46 NY2d 940 [1979], cert denied 442 US 910[1979], rearg dismissed 56 NY2d 646 [1982]). Indeed, the amendment merelyreflected a variation in the proof that was presented by defendant (see People vSpann, 56 NY2d 469, 473 [1982]).[*2]
We reject defendant's further contentionconcerning the court's refusal to charge criminal trespass in the third degree (Penal Law§ 140.10) and petit larceny (§ 155.25) as lesser included offenses ofburglary and robbery, respectively. Contrary to defendant's contention with respect tocriminal trespass, there is no reasonable view of the evidence to support the theory thatdefendant broke into the staff office with the intent to retrieve his own money and no oneelse's, or that he formed an unlawful intent to commit a crime after he entered the office(see People v Blim, 63 NY2d 718, 720 [1984]; People v Harris, 50 AD3d1608, 1608 [2008], lv denied 10 NY3d 959 [2008]; People vMercado, 294 AD2d 805, 805 [2002], lv denied 98 NY2d 731 [2002]).Contrary to defendant's contention with respect to petit larceny, in light of theoverwhelming evidence of a forcible taking, there is no reasonable view of the evidenceto warrant such a charge (seePeople v Sulli, 81 AD3d 1309, 1310 [2011], lv denied 17 NY3d 802[2011]; People v Bowman,79 AD3d 1368, 1369-1370 [2010], lv denied 16 NY3d 828 [2011]).
We likewise reject defendant's contention that the court erred in failing to instruct thejury on Penal Law § 20.10 inasmuch as there is no evidence to support a findingthat defendant's conduct was "necessarily incidental" to the crimes perpetrated(id.; see People vLee, 56 AD3d 1250, 1251-1252 [2008], lv denied 12 NY3d 818[2009]). Although we agree with defendant's further contention that it may have beenhelpful if the court had expressly instructed the jury that "[t]he testimony of oneaccomplice cannot be used to corroborate the testimony of another" (CJI2d[NY]Accomplice as a Matter of Fact n 5), we conclude that the charge as given adequatelyconveyed that principle (seegenerally People v Gomez, 16 AD3d 280, 280-281 [2005], lv denied 5NY3d 789 [2005]; People v Konigsberg, 137 AD2d 142, 146-147 [1988], lvdenied 72 NY2d 912 [1988], reconsideration denied 72 NY2d 1046 [1988];People v Watson, 134 AD2d 871, 871 [1987], lv denied 71 NY2d 904[1988]).
Even assuming that the other juvenile residents who were present at the time of theincidents were accomplices, we conclude that their testimony was adequatelycorroborated by, inter alia, defendant's admissions to the police (see People vBurgin, 40 NY2d 953, 954 [1976]; People v Dawson, 249 AD2d 977, 978[1998], lv denied 93 NY2d 872 [1999]); DNA and blood spatter evidenceconnecting defendant to the victim and the weapon (see People v Mitchell, 68 AD3d 1019, 1019 [2009], lvdenied 14 NY3d 890 [2010]; People v Swift, 241 AD2d 949, 949 [1997],lv denied 91 NY2d 881 [1997], lv denied 91 NY2d 1013 [1997]);evidence that, prior to the commission of the crimes, defendant asked people in theneighborhood for a baseball bat or a knife "to take care of somebody"; and evidence thatdefendant, codefendant, and a third resident were apprehended at a bus station anddefendant had several hundred dollars on his person (see generally People v Exum, 66 AD3d 1336, 1337[2009]).
Contrary to defendant's further contention, the evidence is legally sufficient tosupport the conviction (see generally People v Bleakley, 69 NY2d 490, 495[1987]) and, viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). We rejectdefendant's contention, improperly raised for the first time in his reply brief (see generally People vSponburgh, 61 AD3d 1415, 1416 [2009], lv denied 12 NY3d 929[2009]), that the testimony of the eyewitnesses was incredible as a matter of law (see People v Watkins, 63AD3d 1656, 1657 [2009], lv denied 13 NY3d 750 [2009]; People v Ptak, 37 AD3d1081, 1082 [2007], lv denied 8 NY3d 949 [2007]).
The court properly denied defendant's application for youthful offender treatmentbecause defendant's conviction of a class A-I felony rendered him ineligible for youthfuloffender status (see CPL 720.10 [2] [a] [i]; Penal Law § 125.25 [3];People v Glover, 128 AD2d 636, 637 [1987], lv denied 70 NY2d 711[1987]). Finally, we conclude that the sentence is not unduly harsh or severe in light ofthe depraved nature of defendant's conduct and his refusal to accept [*3]responsibility. Present—Smith, J.P., Peradotto,Lindley, Whalen and Martoche, JJ.