Opinion
November 2, 1989
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
The jury acquitted defendant of the crime of robbery in the first degree. On this appeal defendant argues that the proof at trial was insufficient to support his conviction under the second count of the indictment for robbery in the second degree. Specifically, defendant contends that the People failed to prove an essential element of that lesser crime, namely that in the course of the robbery he was "aided by another person actually present". (Penal Law § 160.10.) On the contrary, we find ample support in the record for a jury finding of guilt on this issue. This was a gas station robbery at 3:00 A.M. on the Hutchinson River Parkway on February 17, 1987. Defendant was driven to that location in a white Oldsmobile by a driver who waited during the course of defendant's knifepoint robbery of the gas station attendant and defendant's retreat to the car after a melee with the victim who had armed himself with a pipe. Just before the pair fled in the car, the attendant struck the vehicle several times with his pipe. On this evidence the jury could find, beyond a reasonable doubt, that the driver was both "actually present" at the scene of the crime, and that he was also rendering aid to defendant, not only to accomplish the robbery, but also to assist defendant's successful getaway with the robbery proceeds.
Concur — Murphy, P.J., Kupferman, Carro, Kassal and Wallach, JJ.