| People v Placido |
| 2017 NY Slip Op 02694 [149 AD3d 1157] |
| April 6, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v AnthonyG. Placido, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Otsego County (Burns, J.),rendered February 20, 2015, upon a verdict convicting defendant of the crimes of attemptedrobbery in the first degree and conspiracy in the fourth degree.
On November 14, 2013, defendant and codefendant Victor Deleon, as well as Jordan Krone,Sabra Dayton and Alan Stay, devised a plan to rob two drug dealers of heroin. As a result ofthese and subsequent events, defendant was indicted on charges of attempted robbery in the firstdegree and conspiracy in the fourth degree. Thereafter, defendant moved to, among other things,dismiss the indictment as facially defective, contending, among other things, that the charge ofconspiracy in the fourth degree failed to allege that defendant committed an overt act infurtherance of the conspiracy. The People opposed defendant's motion in part, conceded thatcount 2 failed to allege an overt act, which rendered the count defective, and cross-moved toamend the indictment to remedy that defect. County Court, among other things, granted thePeople's cross motion to amend the indictment. Following a jury trial, defendant was convictedas charged. Thereafter, defendant was sentenced, as a second felony offender, to 15 years inprison with five years of postrelease supervision for attempted robbery in the first degree and 2 to4 years in prison for conspiracy in the fourth degree, with the sentences to run consecutively.Defendant now appeals.
County Court erred in denying that part of defendant's motion that sought to dismiss count 2of the indictment based on the failure to allege an overt act in furtherance of the alleged [*2]conspiracy. As the People conceded, both at trial and now, count 2of the indictment was defective inasmuch as it failed to allege the commission of an overt act infurtherance of the conspiracy as required by Penal Law § 105.20 (see CPL200.50 [7] [a]; 200.70 [2] [a], [b]). Given that "[a]n indictment may not be amended in anyrespect . . . for the purpose of curing: (a) [a] failure . . . to charge orstate an offense; or (b) "[l]egal insufficiency of the factual allegations" (CPL 200.70 [2]), CountyCourt had no authority to grant the People's motion to amend the indictment to allege an overtact. Moreover, the People's contention that defendant consented to the amendment is directlycontradicted by the fact that defendant specifically argued that the proper remedy for the People'sfailure was dismissal of count 2 of the indictment. Accordingly, as count 2 was jurisdictionallydefective and not subject to amendment, we reverse the conviction for conspiracy in the fourthdegree and the sentence imposed thereon (see CPL 200.50 [7] [a]; 200.70 [2] [a], [b]; People v Dreyden, 15 NY3d 100,103 [2010]; People v Grays, 121AD3d 1178, 1179 [2014]; People vBoula, 106 AD3d 1371, 1372 [2013], lv denied 21 NY3d 1040 [2013]).
Next, defendant contends that the attempted robbery in the first degree conviction is againstthe weight of the evidence. More specifically, he argues that the proof fell short of establishingthat he had the intent to commit the robbery and that he came dangerously near to doing so. Aconviction of attempted robbery in the first degree requires the People to prove that, with theintent to forcibly steal property, the defendant attempted to do so and was aided by anotherperson who was present, and that the defendant or another participant was armed with a deadlyweapon (see Penal Law §§ 110.00, 160.15 [2]). "In order to constitutean attempt, the defendant's conduct must have passed the stage of mere intent or merepreparation to commit a crime" (Peoplev Naradzay, 11 NY3d 460, 466 [2008] [internal quotation marks and citation omitted])."In other words, the defendant must have engaged in conduct that came dangerously nearcommission of the completed crime" (id. [internal quotation marks and citationsomitted]; see People v Ryder, 146AD3d 1022, 1024 [2017]). Moreover, a defendant's "intent can . . . be inferredfrom the defendant's conduct and the surrounding circumstances" (People v Bracey, 41NY2d 296, 301 [1977] [internal quotation marks and citation omitted]; see People v Lamont, 25 NY3d315, 318-319 [2015]).
A variety of testimony, including defendant's, established that, in November 2014, defendantmet with Deleon, Krone, Dayton and Stay at a hotel and they proceeded to jointly devise a plan torob the drug dealers of their heroin. The plan included the premise that defendant would pose asa drug purchaser, and there was some testimony that the specific plan would be that, aftermeeting with the drug dealers, defendant would explain that he needed to secure money from hiscar, and that he would thereafter return with Deleon and take the drugs at gunpoint. According todefendant, at some point during the planning, he learned that Krone was a confidential informant(hereinafter CI), and he thereafter abandoned the plan to rob the drug dealers in favor of a plan toproceed to buy drugs from the dealers in a manner consistent with the arrangement that they hadpreviously made with the dealers as a premise for luring them into a robbery. Defendant furtherexplained that he nonetheless took his handgun to the meeting with the drug dealers at Krone'shome. Deleon remained outside with a shotgun. Defendant further explained that, before he wentinto the home, he told Deleon to "make sure he had [defendant's] back." A neighbor testified that,around this time, he observed a male walking stiff-legged and holding his right side in a mannerthat suggested that he had a firearm. The neighbor contacted law enforcement, who arrived andeventually detained Deleon.
Meanwhile, and according to Krone, defendant, with a handgun in his waistband, arrived athis home, where the drug dealers were waiting. Krone explained that the drug dealers "noticedthat something wasn't right," and began asking questions of defendant. According to [*3]Krone, the drug dealers had been misinformed, as a part of therobbery plan, that defendant was a college student, and when they began asking specificquestions about this and other subjects, defendant began "stumbling over his words" and "didn'thave a lot of answers." Krone further explained that the drug dealers did not have the drugs withthem in the house at that point and that his impression was that defendant "could tell that thingsweren't going exactly the way that he had planned them out to go." According to Krone, at thatpoint, defendant removed the firearm from his waistband, took out its clip, placed the firearm onthe floor and informed the drug dealers that he did not want to get robbed. Thereafter, the drugdealers brought the drugs into the home. Eventually, defendant left, taking the handgun andstating that he needed to secure more funds and then would return to purchase the drugs.Defendant did not return. According to defendant's own testimony, he was unable to reachDeleon by phone after he left Krone's home, and he soon realized that the police had been calledto the area. He disposed of his handgun in a nearby flower pot and left the scene.
Accordingly, uncontested evidence established that defendant had specifically formed anintent to rob the drug dealers and had entered Krone's apartment with a handgun while Deleonremained outside with a shotgun. Thus, defendant and Deleon were "equipped for criminal actsinvolving force and threatening behavior in furtherance of a robbery" (People v Lamont,25 NY3d at 320). Further evidence established that defendant only unloaded and parted with hishandgun after he struggled to answer questions posed by the drug dealers, and one couldreasonably infer that, by that point, defendant had realized the drugs were not in the house. Afterthe drug dealers brought drugs into the house, defendant eventually left, giving the excuse that heneeded to obtain more money—the excuse that other testimony had established wascontemplated as a part of the plan to return with Deleon and commit the robbery. From thiscircumstantial evidence that defendant continued to conduct himself in accordance with therobbery plan previously formulated, the jury could reasonably infer that defendant continued tohave the intention to rob the drug dealers as he entered the home and interacted with itsoccupants, and moreover that he engaged in conduct that came dangerously near the commissionof robbery in the first degree. Further, the jury clearly found incredible defendant's explanationthat, upon learning that Krone was a CI, defendant decided to abandon the plan to rob the drugdealers in favor of a plan to purchase drugs while in the company of an individual that defendantknew to be a CI. Deferring to the jury's credibility determinations, we find that defendant'sconviction for attempted robbery in the first degree was not against the weight of the evidence(see People v Guy, 93 AD3d877, 881 [2012], lv denied 19 NY3d 961 [2012]; People v Snow, 303 AD2d255, 255 [2003], lv denied 99 NY2d 658 [2003]; People v Colp, 147 AD2d 964,964 [1989], lv denied 74 NY2d 662 [1989]; see generally People v Lamont, 25NY3d at 321).
Finally, defendant contends that his sentence was harsh and excessive given that, prior totrial, he was offered a plea deal with a term of incarceration of five years, and County Courtsentenced him to 15 years in prison for his conviction of attempted robbery in the first degree.Initially, to the extent that defendant argues that the sentence imposed was in retaliation for himexercising his right to a jury trial, that contention is unpreserved (see People v Martinez, 144 AD3d1326, 1326 [2016], lv denied 28 NY3d 1186 [2017]; People v Haskins, 121 AD3d1181, 1185 [2014], lv denied 24 NY3d 1120 [2015]). Moreover, "the mere fact that asentence imposed after trial is greater than that offered in connection with plea negotiations doesnot, without more, establish retaliation or vindictiveness" (People v Major, 143 AD3d 1155, 1160 [2016], lv denied 28NY3d 1147 [2017]; see People vSouffrant, 93 AD3d 885, 887 [2012], lv denied 19 NY3d 968 [2012]).Otherwise, defendant had a prior felony conviction making him a second felony offender, and hehad been convicted of four misdemeanors, related to the possession of stolen property, thecriminal possession of a firearm, the possession of a controlled substance and the possession of aforged instrument. Defendant committed the instant offense [*4]less than two months after being released from a prison sentenceimposed on his felony conviction for criminal possession of a controlled substance in the fifthdegree. All of the aforementioned convictions have occurred since 2007, when defendant was 17.Considering this criminal history, we find no abuse of discretion or extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice (see People v Favor, 49 AD3d 915,916 [2008]; People v Smith, 43AD3d 493, 493 [2007]). Defendant's remaining contentions have been considered and arefound to be without merit.
Egan Jr., Lynch, Devine and Clark, JJ., concur. Ordered that the judgment is modified, on thelaw, by reversing defendant's conviction of conspiracy in the fourth degree under count 2 of theindictment; count 2 dismissed, without prejudice, and the sentence imposed thereon vacated; and,as so modified, affirmed.