| People v Deleon |
| 2017 NY Slip Op 02848 [149 AD3d 1273] |
| April 13, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Victor G.Deleon, Appellant. |
John R. Trice, Elmira, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Otsego County (Burns, J.), renderedFebruary 20, 2015, upon a verdict convicting defendant of the crimes of attempted robbery in thefirst degree and conspiracy in the fourth degree.
Defendant and codefendant Anthony G. Placido were charged by indictment with attemptedrobbery in the first degree (count 1) and conspiracy in the fourth degree (count 2) after they,along with three others, devised a plan to rob two out-of-town drug dealers of their drugs atgunpoint. Prior to trial, Placido moved to dismiss the indictment alleging, among other things,that count 2 of the indictment was jurisdictionally defective because it failed to allege an overtact committed in furtherance of the conspiracy (see People v Placido, 149 AD3d 1157 [2017]). County Court then granted the People's request to amend count 2 of the indictmentas to both Placido and defendant to cure this defect. A joint jury trial thereafter ensued, followingwhich both defendant and Placido were convicted as charged. Defendant was subsequentlysentenced to 12 years in prison with five years of postrelease supervision for the attemptedrobbery conviction and 1
In connection with Placido's appeal, this Court has held that count 2 of the indictment wasjurisdictionally defective and that County Court lacked the authority to grant the People's motionto amend that count (see People v Placido, 149 AD3d at 1157-1158 [2017]). In light of the fact that count 2 of the indictment was identical in respect toPlacido and defendant, it [*2]necessarily follows that this Court'sholding in People v Placido (supra) applies with equal force to defendant.Accordingly, notwithstanding the fact that defendant did not raise this issue before County Courtand does not raise it on appeal, we exercise our interest of justice jurisdiction and reversedefendant's conviction for conspiracy in the fourth degree.
As to defendant's conviction for attempted robbery in the first degree, he contends that it isagainst the weight of the evidence because the proof established that, en route to carry out therobbery, he and Placido changed their minds about executing the plan. We disagree. Although adifferent verdict would not have been unreasonable, after viewing the evidence in a neutral lightand according great deference " 'to the fact-finder's opportunity to view the witnesses,hear the testimony and observe demeanor' " (People v Peart, 141 AD3d 939, 940 [2016], lv denied 28NY3d 1074 [2016], quoting People v Bleakley, 69 NY2d 490, 495 [1987]), we find that ajury could reasonably conclude that defendant's actions and the surrounding circumstances,including Placido's conduct, established not only defendant's intent to forcibly steal drugs fromthe out-of-town dealers (see generallyPeople v Lamont, 25 NY3d 315, 319 [2015]; People v Newell, 148 AD3d 1216, 1220-1221 [2017]; People v Wilkerson, 140 AD3d1297, 1302 [2016], lv denied 28 NY3d 938 [2016]), but also that he came" 'dangerously near' " to committing robbery in the first degree (People vKassebaum, 95 NY2d 611, 618 [2001], cert denied 532 US 1069 [2001], quotingPeople v Acosta, 80 NY2d 665, 670 [1993]; cf. People v Lamont, 25 NY3d at319-321). Accordingly, we are satisfied that defendant's conviction for attempted robbery in thefirst degree is supported by the weight of the evidence (see People v Placido, 149 AD3dat 1160 [2017]; People v Guy, 93AD3d 877, 881-882 [2012], lv denied 19 NY3d 961 [2012]).
Finally, we are unpersuaded by defendant's contention that the sentence imposed for theattempted robbery conviction was harsh and excessive. Defendant's sentence is within thepermissible statutory range (see Penal Law § 70.02 [3] [b]) and, given hisreckless actions and lack of remorse, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence (see People v Robinson, 53 AD3d 681, 684 [2008], lvdenied 11 NY3d 794 [2008]; Peoplev Baybury, 30 AD3d 627, 628 [2006], lv denied 7 NY3d 785 [2006]; Peoplev Stewart, 296 AD2d 587, 588 [2002]).
Peters, P.J., McCarthy, Garry and Aarons, JJ., concur. Ordered that the judgment is modified,as a matter of discretion in the interest of justice, by reversing defendant's conviction ofconspiracy in the fourth degree under count 2 of the indictment; said count dismissed, withoutprejudice, and the sentence imposed thereon vacated; and, as so modified, affirmed.