| People v Ettleman |
| 2013 NY Slip Op 06134 [109 AD3d 1126] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vPatrick J. Ettleman, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered January 12, 2012. The judgment convicted defendant, upon a jury verdict, ofrobbery in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofrobbery in the second degree (Penal Law § 160.10 [1]), defendant contends that hewas denied a fair trial based on prosecutorial misconduct. Specifically, defendantcontends that the prosecutor made several comments during the trial regardingaccomplice liability, whereas the indictment charged defendant only as a principal.Because defendant did not object to any of the comments, his contention concerningthem is unpreserved for our review (see CPL 470.05 [2]). In any event, weperceive no ground for reversal based on those comments. "It is well established thatliability as a principal or an accomplice is not an element of the crime charged and thatthe People may charge defendant as a principal but establish his guilt as an accomplice"(People v Coble, 94 AD3d1520, 1521 [2012], lv denied 19 NY3d 995 [2012] [internal quotation marksomitted]; see People vSarita, 77 AD3d 555, 556 [2010], lv denied 16 NY3d 800 [2011]).Moreover, "there is no legal distinction between liability as a principal or criminalculpability as an accomplice" (People v Rivera, 84 NY2d 766, 769 [1995]; see People v Staples, 19 AD3d1096, 1097 [2005], lv denied 5 NY3d 810 [2005]).
Here, the prosecutor stated prior to trial that he might pursue a theory of accompliceliability, and his comments during the trial reflected that possibility. In response to theprosecutor's pretrial comment, County Court properly stated that it would wait to see howthe proof "play[ed] out" before deciding whether to instruct the jury on accompliceliability. The court ultimately did not charge that theory to the jury. Instead, the court, inaccordance with the indictment, instructed the jury that, in order to find defendant guiltyof robbery in the second degree under Penal Law § 160.10 (1), the People mustprove beyond a reasonable doubt that defendant forcibly stole property from anotherperson while "aided by another person actually present." That instruction was proper, andthe jury is presumed to have followed it (see People v Bibbes, 98 AD3d 1267, 1269-1270 [2012],lv denied 20 NY3d 931 [2012]).[*2]
In any event, even assuming, arguendo, that theprosecutor engaged in misconduct by referring to accomplice liability at trial, weconclude that defendant was not prejudiced thereby. Indeed, the prosecutor's commentsregarding accomplice liability "could not have been interpreted by the jury as aninstruction on the law, since the prosecutor had previously stated that the Judge wouldinstruct them on the law" (People v Rosenblitt, 198 AD2d 382, 383 [1993], lvdenied 82 NY2d 902 [1993]; see People v Delphin, 26 AD3d 343, 343 [2006], lvdenied 6 NY3d 893 [2006]).
For similar reasons, we reject defendant's further contention that he was deprived ofeffective assistance of counsel based on defense counsel's failure to object to theprosecutor's allegedly improper comments (see generally People v Santiago, 101 AD3d 1715, 1717[2012], lv denied 21 NY3d 946 [2013]). We conclude that the record, viewed asa whole, demonstrates that defense counsel provided meaningful representation (see People v Martinez, 73AD3d 1432, 1433 [2010], lv denied 15 NY3d 807 [2010]; see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's contention, we conclude that the evidence is legallysufficient to support the conviction and, viewing the evidence in light of the elements ofthe crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wefurther conclude that the verdict is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). The victim testified thatdefendant approached him outside a bar late at night and asked him for directions to thenearest hotel. Defendant was with his daughter at the time. When the victim pointeddown the street, defendant punched him in the face, knocking him to the ground,whereupon someone reached into his pocket and took his wallet. Although the victim didnot see who took the wallet, defendant and his daughter were the only other people in thevicinity. The bartender observed the victim on the ground and defendant and hisdaughter running away. The bartender gave chase and, upon catching defendant, askedhim why he had struck the victim, who was employed at the bar. In response, defendantclaimed that the victim had attempted to hit him. Defendant then made a movement as ifhe were going to reach inside his jacket, and the bartender reacted by grabbing him.While the two men were scuffling, a police officer arrived and, after clarifying what hadoccurred, arrested defendant.
When questioned by the police, defendant admitted that he struck the victim butdenied taking his wallet, which was never recovered. Although she was not arrested,defendant's daughter was at the police station with defendant. When it became clear tohis daughter that defendant was not going to be released from police custody, shetelephoned a relative and made arrangements to be picked up at the police station. Thedaughter, however, did not wait at the police station to be picked up. Instead, she left onher own and was later observed at the scene of the crime. The daughter's return to thecrime scene under those circumstances gives rise to a "permissible inference[ ]" thatcould have led the jury to conclude that she may have known where the wallet waslocated and that she may have put it in that location (Bleakley, 69 NY2d at 495).
Contrary to defendant's contention, we conclude that the circumstantial evidence,when viewed in the light most favorable to the People (see People v Contes, 60NY2d 620, 621 [1983]), is legally sufficient to establish that defendant committed therobbery while aided by his daughter (see generally Bleakley, 69 NY2d at 495).Because no one else was in the vicinity when the robbery occurred, it was eitherdefendant or his daughter who took the victim's wallet. If defendant did not take thewallet, as he repeatedly stated to the police, it follows that his daughter must have takenit. That conclusion is supported by the fact that defendant's daughter was seen runningfrom the fallen victim with defendant and then returned to the crime scene later that nighteven though she had made arrangements to be picked up at the police station by arelative. We further conclude that, although a different verdict would not have beenunreasonable, it cannot be said that the jury failed to give the evidence the weight itshould be accorded (see [*3]People v Sterina, 108 AD3d 1088, 1090 [2013];People v Mobley, 49 AD3d1343, 1345 [2008], lv denied 11 NY3d 791 [2008]; see generallyBleakley, 69 NY2d at 495).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Centra, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.