Opinion
June 27, 1988
Appeal from the Supreme Court, Kings County (Corriero, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15). It was established at trial that the defendant, during the course of the robbery, restrained the complainant in an apartment, stole the complainant's gold necklace, illegally used the complainant's car, and possessed a weapon.
The defendant's failure to assert his claim prior to the discharge of the jury that the verdict convicting him but acquitting his codefendants is repugnant renders that claim unpreserved for this court's review (see, CPL 470.05; People v Alfaro, 66 N.Y.2d 985; People v Satloff, 56 N.Y.2d 745, rearg denied 57 N.Y.2d 674). The claim is, in any event, without merit as the jury was instructed to consider the evidence separately as to each defendant and to consider the guilt or innocence of each defendant separately and independently. While the trial court also charged the jury, in essence, that an element of each crime was that the defendants each aided the other, one may aid in the commission of a crime without having the mental culpability necessary to be guilty of that crime as an accomplice (see, Penal Law § 115.00; People v Green, 126 A.D.2d 105, 109, affd 71 N.Y.2d 1006). Moreover, the trial court did not instruct the jury that all of the defendants had to be found guilty or none could be (cf., People v Hampton, 92 A.D.2d 490, affd 61 N.Y.2d 963). The subsequent verdict which acquitted the codefendants was not inconsistent when viewed in the context of the court's charge (see, People v Tucker, 55 N.Y.2d 1, rearg denied 55 N.Y.2d 1039) and, accordingly, was not repugnant.
Contrary to the defendant's assertions, we find no support in the record to substantiate his claim that he was deprived of the effective assistance of counsel (see, People v Baldi, 54 N.Y.2d 137).
Finally, given the fact that the sentencing court gave extensive consideration to the defendant's circumstances, we conclude that the sentences imposed were neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80). Mollen, P.J., Mangano, Brown and Kunzeman, JJ., concur.