| People v Bacote |
| 2013 NY Slip Op 04905 [107 AD3d 641] |
| June 27, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Keith Bacote, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), renderedJanuary 23, 2011, convicting defendant, after a jury trial, of robbery in the seconddegree, and sentencing him, as a second felony offender, to a term of eight years,unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). Initially, we find no basis fordisturbing the jury's credibility determinations.
Defendant's entire course of conduct, beginning with the fact that he and anunapprehended companion suspiciously tarried in a restaurant men's room without usingits facilities, supports an inference that he was an intentional participant in the robbery ofa man who emerged from the restroom's stall (see People v Jackson, 44 NY2d935 [1978]). When, at the unapprehended robber's direction, defendant made the victimgo back into the stall, this was in such close temporal and spatial proximity to thepreceding theft of the victim's money that it can be reasonably viewed as aiding thecommission of the robbery (see Penal Law § 20.00), rather than as actingas an accessory after the fact, now known as hindering prosecution (see PenalLaw § 205.50). Defendant's theory that he never expected his companion tocommit the robbery and never intended to participate, but suddenly agreed to help hiscompanion escape, makes little sense under the evidence presented.
Moreover, the evidence also supports the inference that defendant took part in theactual taking of the victim's money. The victim's testimony, viewed as a whole, warrantsan inference that defendant positioned himself so as to intimidate the victim by hispresence and to be ready to render immediate aid to the unapprehended robber (see e.g. People v Burgess, 90AD3d 531 [1st Dept 2011] [and cases cited therein], lv denied 19 NY3d 958[2012]). Indeed, since the other robber neither displayed nor threatened the use of aweapon, the intimidating presence of a second man, to deter resistance, was essentiallythe means by which the robbery was accomplished. Finally, defendant's conduct infleeing from the scene with the other robber provided some additional proof of hisaccessorial liability.
Defendant's challenges to the People's summation are unpreserved, and we decline to[*2]review them in the interest of justice. As analternative holding, we find no basis for reversal (see People v Overlee, 236AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976 [1998]; People vD'Alessandro, 184 AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d884 [1993]). Concur—Tom, J.P., Mazzarelli, Moskowitz and Gische, JJ.