| People v Vicioso |
| 2014 NY Slip Op 02634 [116 AD3d 1250] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMichael T. Vicioso, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Jeremy V. Murray of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered July 6, 2012, upon a verdict convicting defendant of the crime of robbery inthe second degree.
On January 18, 2012, defendant, at the behest of Charles Barnes, called a taxicabcompany and requested to be picked up at an address located in the City of Elmira,Chemung County. Shortly after the cab arrived at that address—which was avacant building—defendant approached the vehicle and began to open thepassenger-side door. At the same time, Barnes, who was wearing a hockey mask and ablack hooded sweatshirt, pointed what appeared to be a firearm at the cab driver(hereinafter the victim) and demanded his money. The victim turned over approximately$80 to Barnes, who later gave $20 to defendant. After receiving information regardingthe robbery, the City of Elmira Police Department SWAT team executed a search warrantat defendant's apartment and found a hockey mask and a BB gun. Defendant wasthereafter charged by indictment with one count of robbery in the second degree under atheory of accomplice liability. Following a jury trial, defendant was convicted as chargedand was thereafter sentenced to 3½ years in prison, followed by five years ofpostrelease supervision, and [*2]was ordered to payrestitution.[FN1]Defendant now appeals, challenging the legal sufficiency of the evidence adduced attrial.
We affirm. As relevant here, "[a] person is guilty of robbery in the second degreewhen he [or she] forcibly steals property and . . . [i]n the course of thecommission of the crime or of immediate flight therefrom, he [or she] or anotherparticipant in the crime . . . [d]isplays what appears to be" a firearm (PenalLaw § 160.10 [2] [b]). A defendant can be found guilty of robbery in the seconddegree under a theory of accomplice liability when such defendant, with the intent toforcibly steal property, "solicits, requests, commands, importunes, or intentionally aids[another] person to engage in . . . conduct" which constitutes that offense(Penal Law § 20.00; accord People v Bush, 75 AD3d 917, 918 [2010], lvdenied 15 NY3d 919 [2010]). Further, to the extent that defendant asserts that hewas not aware that Barnes would use a firearm in the course of the robbery, we note that"strict liability for an aggravating circumstance attaches to an accomplice, regardless of[his or her] degree of intent, knowledge or conduct with respect to the aggravatingcircumstance" (People v Gage, 259 AD2d 837, 839 [1999], lv denied 93NY2d 924 [1999], lv denied upon reconsideration 92 NY3d 970 [1999]; see People v Shuler, 100AD3d 1041, 1043 [2012], lv denied 20 NY3d 988 [2012]).
We are unpersuaded by defendant's argument that the evidence was insufficient toestablish the element of intent necessary for accomplice liability. Defendant's intent toforcibly steal money from the victim can readily "be inferred from [his] conduct and fromthe surrounding circumstances" (People v Bush, 75 AD3d at 918; see People v Johnson, 106AD3d 1272, 1278 [2013], lv denied 21 NY3d 1043 [2013]; People v Ford, 90 AD3d1299, 1300 [2011], lv denied 18 NY3d 994 [2012]). According to witnesseswho were present at defendant's apartment on the day of the robbery—and asconceded by defendant himself—defendant and Barnes engaged in a conversationabout robbing a cab driver shortly before the robbery. Not long thereafter, witnesses sawdefendant and Barnes leave the apartment and then return approximately 20-30 minuteslater. Upon their return, they were heard to say that "they did something" and that theyhad hidden a gun in the back window of the apartment.
The victim testified that he was dispatched by his employer to an address, whichturned out to be a vacant building. When he arrived at that location, he saw defendantapproach the passenger-side door and begin to open it. At the same time, anotherindividual wearing a mask and hoodie opened the driver-side door, pointed whatappeared to be a gun at him, demanded his money, and told defendant to walk away fromthe cab if he did not "want to get shot too," at which point defendant took off running. Asubsequent search of defendant's apartment by the police yielded a mask and a BB gun,which were discovered on a window ledge in the basement. The victim identified theseized mask and firearm as those from the robbery.[FN2][*3]
The manager of the taxicab company thatemployed the victim testified that defendant called the day after the robbery, identifiedhimself by name and reported that he was the individual who had called for the cab thathad been robbed the previous night. Although defendant stated that the robber had beenwearing a mask, he never indicated that he knew the robber's identity. Defendant thencalled the police department, spoke to an investigator and stated that he was theindividual in the cab that had been robbed. The following day, defendant went to thepolice department, where he gave a written statement—which was admitted intoevidence at trial—in which he claimed that he called the cab because he waswalking home and his ankle started hurting and that, when he approached the cab, aperson with a hoodie and face mask opened the driver-side door, pointed a gun at thedriver's face and threatened to shoot defendant if he did not leave.
After the search of defendant's apartment and the seizure of the mask and gun,defendant was arrested and brought to the police station, where he was advised of hisMiranda rights. He then gave a second statement to police—which wasalso reduced to writing and received in evidence at trial—in which he admittedthat he had not been truthful in his previous statement. Defendant confessed that, prior tothe robbery, he and Barnes were in defendant's apartment and discussed robbing a cab.He observed Barnes with a black mask and gun that "looked like a police gun."Defendant also stated that, as they were leaving the apartment, he saw Barnes tuck thegun into the waistband of his pants and put the mask in his hoodie. Barnes told him tocall a cab to an abandoned building, where defendant waited for the cab to arrive andBarnes left. According to defendant's statement, he knew at that time that Barnes wasgoing to commit the robbery, but hoped that Barnes would change his mind. Defendantalso told police that, after he and Barnes had returned to defendant's apartment, Barnesgave him some of the money that Barnes had taken from the victim.
The foregoing evidence, when viewed in the light most favorable to the People,establishes a valid line of reasoning and permissible inferences from which a rationaljuror could have found beyond a reasonable doubt that defendant intended to forciblysteal money from the victim when he intentionally aided Barnes in his plan to rob thevictim by calling a cab to a vacant building while Barnes used what appeared to be afirearm to force the victim to hand over money (see People v Reed, 22 NY3d 530, 534-535 [2014];People v Bush, 75 AD3d at 919; see also People v Bleakley, 69 NY2d490, 495 [1987]). Accordingly, the evidence was legally sufficient to establish thatdefendant acted with the state of mind required for the commission of the crime ofrobbery in the second degree as an accomplice. We have examined defendant's remainingcontentions and find them to be lacking in merit.
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Barnes pleaded guilty toattempted robbery in the second degree.
Footnote 2: A witness, who is anacquaintance of Barnes, testified that, on the day before the robbery, he and Barnesreturned to the witness's home after shooting the witness's BB gun in the woods, and thathe hid the gun in his mother's room. After the robbery, the witness discovered that thegun was missing and, at trial, he identified the firearm that was used during the robberyas his BB gun.