| People v Terranova |
| 2017 NY Slip Op 01390 [147 AD3d 1086] |
| February 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Fabrizio Terranova, Appellant. |
Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, William H. Branigan, and Anish M. Patel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lopresto,J.), rendered February 20, 2014, convicting him of robbery in the first degree, attempted robberyin the second degree, criminal possession of a weapon in the third degree, attempted robbery inthe third degree, criminal possession of stolen property in the fourth degree, and criminalpossession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the convictions of attemptedrobbery in the second degree under count two of the indictment and attempted robbery in thethird degree under count four of the indictment, vacating the sentences imposed thereon, anddismissing those counts of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted, after a nonjury trial, of multiple crimes relating to a series ofevents that occurred on May 1, 2012. On appeal, he contends that the evidence was legallyinsufficient to support his convictions of attempted robbery in the second degree, criminalpossession of a weapon in the third degree, attempted robbery in the third degree, criminalpossession of stolen property in the fourth degree, and criminal possession of a weapon in thefourth degree. He further contends that the verdict of guilt as to all counts, including the count ofrobbery in the first degree, was against the weight of the evidence.
The defendant's general motion to dismiss at the close of the People's case was insufficient topreserve his contention that the evidence was legally insufficient as to certain counts (see People v Hawkins, 11 NY3d484, 492 [2008]; People v Finger, 95 NY2d 894, 894 [2000]; People vBynum, 70 NY2d 858, 859 [1987]; People v Stahl, 53 NY2d 1048, 1050 [1981];cf. CPL 470.05 [2]). However, upon our independent review of the record (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we find that the verdict of guilt as to the counts ofattempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [3]) andattempted robbery in the third degree (Penal Law §§ 110.00, 160.05) wasagainst the weight of the evidence.
"In order to sustain a conviction for robbery . . . the People must establish thatdefendant had the requisite intent—that is, larcenous intent. Larcenous intent means the'intent to [*2]deprive another of property or to appropriate thesame to himself or to a third person' " (People v Medina, 18 NY3d 98, 103 [2011], quoting Penal Law§ 155.05 [1]; see Penal Law § 160.00). The terms "deprive"and "appropriate" are specifically defined in Penal Law § 155.00 (3) and (4),respectively, and connote a purpose "to exert permanent or virtually permanent control over theproperty taken, or to cause permanent or virtually permanent loss to the owner of the possessionand use thereof" (People v Jennings, 69 NY2d 103, 118 [1986] [internal quotation marksomitted]; see People v Medina, 18 NY3d at 105; People v Cantoni, 140 AD3d 782, 783 [2016]). Thus, "[t]he mensrea element of larceny . . . is simply not satisfied by an intent temporarily to useproperty without the owner's permission, or even an intent to appropriate outright the benefits ofthe property's short-term use" (People v Jennings, 69 NY2d at 119; see People vCantoni, 140 AD3d at 783).
Here, the People presented proof that, following an earlier altercation with four men, thedefendant, "covered in blood," and apparently bleeding from the neck, approached the vehicle ofone of the complainants, asked to be taken to the hospital, and tried to open the front driver'sdoor. The complainant "let go of the clutch," "took off," and called the police. From thisevidence, a trier of facts could rationally infer that the defendant intended to take the vehicle inorder to seek medical treatment. However, to prove robbery, the People had to prove that thedefendant intended to either exert permanent or virtually permanent control over the vehicle, ordispose of it in such a manner as to render it unlikely that the owner would recover it (seePenal Law § 155.00 [3], [4]; People v Medina, 18 NY3d at 105; Peoplev Jennings, 69 NY2d at 118). The People did not offer any evidence at trial from which suchan inference could be made (see People v Cantoni, 140 AD3d at 783-784; People vMontgomery, 39 AD2d 889 [1972]; compare People v Watkins, 117 AD3d 1092, 1093 [2014];People v Brightly, 148 AD2d 623, 624 [1989]). Accordingly, the convictions ofattempted robbery in the second degree and attempted robbery in the third degree must bevacated, and those counts of the indictment dismissed.
However, contrary to the defendant's contention, the verdict of guilt was not against theweight of the evidence as to the remaining counts, which counts related to other incidents on thesame day (see People v Romero, 7NY3d 633 [2006]).
Also contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel, as defense counsel provided meaningful representation (see People v Benevento,91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]). We note that a trial justicemay properly decide a defendant's pretrial Sandoval motion (see People vSandoval, 34 NY2d 371 [1974]) and continue to preside at a nonjury trial, as, absent ashowing of prejudice, the justice, by virtue of his or her learning and experience, is presumed tohave considered only the competent evidence adduced at trial in reaching the verdict (seePeople v Moreno, 70 NY2d 403 [1987]; People v Brown, 24 NY2d 168 [1969];People v Latella, 112 AD2d 324 [1985]; People v Lombardi, 76 AD2d 891[1980]). Rivera, J.P., Cohen, Miller and Brathwaite Nelson, JJ., concur.