| People v Robinson |
| 2014 NY Slip Op 02978 [117 AD3d 1099] |
| May 1, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLouis Robinson, Also Known as Black, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
Louise K. Sira, District Attorney, Johnstown (James P. Riley of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Fulton County(Giardino, J.), rendered April 12, 2012, upon a verdict convicting defendant of thecrimes of robbery in the first degree (two counts), robbery in the second degree (twocounts), criminal use of a firearm in the first degree (two counts), criminal possession ofa weapon in the second degree, assault in the second degree (two counts) and grandlarceny in the fourth degree.
Defendant and codefendants Codie Hayward and Edwin Pastor were indicted fornumerous crimes stemming from an incident during which they robbed andpistol-whipped the victim. Following a jury trial, defendant was convicted of two countseach of robbery in the first degree, robbery in the second degree, criminal use of afirearm in the first degree and assault in the second degree, as well as one count each ofcriminal possession of a weapon in the second degree and grand larceny in the fourthdegree. Sentenced as a second felony offender to an aggregate prison term of 18 years, tobe followed by five years of postrelease supervision, he now appeals.
Defendant's assertion that his convictions are against the weight of the evidence iswithout merit. When conducting a weight of the evidence review, we consider theevidence in a neutral light and, if a different verdict would not have been unreasonable,we must "weigh the [*2]relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Romero, 7 NY3d 633, 643 [2006] [internalquotation marks and citations omitted]; see People v Danielson, 9 NY3d 342, 348 [2007]; People v Fernandez, 106 AD3d1281, 1282 [2013]). In doing so, "we accord great deference to the jury'sconclusions regarding the credibility of witnesses and the weight to be given theirtestimony" (People vGalloway, 93 AD3d 1069, 1071 [2012], lv denied 19 NY3d 996 [2012][internal quotation marks and citations omitted]; see People v Bleakley, 69 NY2d490, 495 [1987]; People vJohnson, 91 AD3d 1194, 1196 [2012], lv denied 18 NY3d 995[2012]).
Here, the trial testimony of Hayward and Pastor established that defendant played anactive role in planning and carrying out the robbery and physical attack upon the victim.They recounted a meeting with defendant during which they devised a plan to do so, andstated that guns were thereafter procured for their use in effectuating the crimes. Bothtestified that, on the day of the incident, defendant picked them up in a gold car and thethree confirmed the plan while traveling to a convenience store where the victim wouldbe present. They explained that, upon arriving at the scene, defendant and Haywardapproached the victim and began speaking with him, after which Pastor suddenlyemerged pointing a gun at the victim's face and demanding that he turn over hispossessions. After the victim handed over his jewelry and cash, he was ordered into thedriver's side of his vehicle while Pastor searched it for drugs, and defendant andHayward surrounded the vehicle's door. When the search proved fruitless, Pastor beganpistol-whipping the victim in the face until the gun went off, causing the three toflee.
The victim's account of the incident was similar to that given by Hayward and Pastor,also relating that he went to the convenience store at the behest of defendant. He furtherrecounted that, although not displaying a weapon, defendant ordered him to "[g]ive upeverything" while the two others pointed guns at him, and that during the course of thephysical attack, defendant and Hayward positioned themselves in such a way as toprevent him from escaping. Furthermore, a witness in the area at the time of the incidentexplained that, after hearing a "pop," she observed three men running from the scene ofthe crime and fleeing in a gold vehicle. Notably, the owner of this vehicle testified thatdefendant arranged to borrow the vehicle and repeatedly instructed her to remain silentabout the matter. Blood and defendant's fingerprints were found inside the vehicle, andwitnesses testified as to having seen defendant with the stolen watch during the daysfollowing the crimes.
Upon exercising our independent review and weighing the proof in the record, weare unpersuaded that the verdict was against the weight of the evidence. Althoughdefendant highlights certain inconsistencies between the testimony of Hayward andPastor, their prior statements to police and the victim's testimony, these were collateral tothe main issues and did not render such testimony unworthy of belief (see People vGalloway, 93 AD3d at 1071-1072; People v Moyer, 75 AD3d 1004, 1006 [2010]; People v Hayden, 60 AD3d1155, 1157 [2009], lv denied 12 NY3d 854 [2009]). Their testimony, whichthe jury weighed and accepted, coupled with the additional evidence presented, providedample support for its determination that defendant's guilt was established beyond areasonable doubt (see People v Danielson, 9 NY3d at 348; People vRomero, 7 NY3d at 643-644).
Nor are we convinced that defendant's 18-year aggregate sentence, which was lessthan the maximum allowable, is harsh or excessive. While defendant attempts tominimize his participation in the incident, the evidence demonstrated that he played anactive role in orchestrating and ultimately effectuating the robbery and the ensuingviolent attack upon the [*3]victim. The fact thatdefendant received a greater sentence than that of Hayward and Pastor upon their guiltypleas does not warrant a reduction of his sentence (see People v Morrison, 71 AD3d 1228, 1230 [2010], lvdenied 15 NY3d 754 [2010]; People v McLean, 307 AD2d 586, 588 [2003],lv denied 100 NY2d 643 [2003]; People v Roberts, 301 AD2d 756, 757[2003]; People v King, 277 AD2d 708, 712 [2000], lv denied 96 NY2d802 [2001]). Perceiving neither an abuse of discretion by County Court nor anyextraordinary circumstances warranting a modification of the sentence in the interest ofjustice, we decline to disturb it (see id.)
Finally, defendant's conviction of assault in the second degree under Penal Law§ 120.05 (6) must be vacated and that count of the indictment dismissed, asit is an inclusory concurrent count of robbery in the second degree under Penal Law§ 160.10 (2) (a) (see CPL 300.30 [4]; 300.40 [3] [b]; People v Perez, 93 AD3d1032, 1039 [2012], lv denied 19 NY3d 1000 [2012]; People v Maldonado, 46 AD3d842, 842 [2007], lv denied 10 NY3d 842 [2008]; People v Brinson,216 AD2d 900, 901 [1995], lv denied 87 NY2d 844 [1995]).
Garry, Rose and Egan Jr., JJ., concur. Ordered that the judgment is modified, on thelaw, by reversing defendant's conviction of assault in the second degree as a lesserincluded offense under count 10 of the indictment; said count dismissed and thesentenced imposed thereon vacated; and, as so modified, affirmed.