| People v Daniels |
| 2015 NY Slip Op 01113 [125 AD3d 1432] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMark Daniels, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered January 18, 2013. The judgment convicted defendant, upon a nonjury verdict,of robbery in the second degree (two counts), grand larceny in the third degree andreckless driving.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence imposed on count four of the indictment and imposing adefinite sentence of 30 days' imprisonment on that count, to run concurrently with thesentences imposed on counts one, two, and three, and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of two counts of robbery in the second degree (Penal Law § 160.10[2] [a]), and one count each of grand larceny in the third degree (§ 155.35[1]) and reckless driving (Vehicle and Traffic Law § 1212), in connectionwith a bank robbery and the flight therefrom, which resulted in injuries to two innocentcivilians.
We reject defendant's contention that the evidence is legally insufficient to supportthe robbery and grand larceny convictions. Viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is a valid line of reasoning and permissible inferences that could leadthe court in this nonjury trial to find that defendant forcibly stole money in excess of$3,000 from the bank. "Although the employees of the bank robbed by defendant. . . could not specifically identify defendant, the element of identity wasestablished by a compelling chain of circumstantial evidence that had no reasonableexplanation except that defendant was . . . the perpetrator[ ]" (People v Brown, 92 AD3d1216, 1217 [2012], lv denied 18 NY3d 992 [2012]). That evidence includedthe stolen GPS unit and prerecorded bait money in defendant's bag that he dropped whenapprehended by the police, clothing removed from defendant at the hospital that matchedthe bank employees' descriptions, and the presence of defendant's DNA on clothingfound in the middle of defendant's route in fleeing from the bank. Furthermore, viewingthe evidence in the light of the elements of the crimes in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is againstthe weight of the evidence with respect to the robbery and grand larceny convictions(see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Kirton, 36 AD3d1011, 1013-1014 [2007], lv denied 8 NY3d 947 [2007]).
Finally, although not raised by defendant, we note that the sentence imposed oncount four of the indictment, i.e., a one-year definite term of imprisonment for recklessdriving, an unclassified misdemeanor, is illegal (see Vehicle and Traffic Law§ 1801 [1]; Penal Law § 70.15 [3]), and we cannot allow thatillegal sentence to stand (seegenerally People v VanValkinburgh, 90 AD3d 1553, 1554 [2011]). "In theinterest of judicial economy, we exercise our inherent authority to correct the illegalsentence" (People v Perrin,94 AD3d 1551, 1551 [2012]). We therefore modify the judgment by vacating thesentence imposed on count four and imposing a definite sentence of 30 [*2]days' imprisonment on that count, to run concurrently withthe sentences imposed on the remaining counts of the indictment (Vehicle and TrafficLaw § 1801 [1]). We otherwise conclude that the sentences imposed on theremaining counts are not unduly harsh or severe. Present—Smith, J.P., Fahey,Whalen and DeJoseph, JJ.