Opinion
260 KA 18-00925
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Dayquawn OUTING, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of robbery in the second degree ( Penal Law § 160.10 [1] ). Defendant's conviction stems from an assault committed by defendant and the codefendant, after which defendant took the victim's cell phone, which the victim had dropped during the assault. Defendant contends that the evidence is legally insufficient to establish that he used physical force with the intent of taking the victim's property. Contrary to the People's contention, defendant's contention is preserved for our review inasmuch as, in denying defendant's motion for a trial order of dismissal, County Court "expressly decided the question raised on appeal" ( CPL 470.05 [2] ; see People v. Jones , 100 A.D.3d 1362, 1363, 953 N.Y.S.2d 416 [4th Dept. 2012], lv denied 21 N.Y.3d 1005, 971 N.Y.S.2d 257, 993 N.E.2d 1279 [2013], cert denied 571 U.S. 1077, 134 S.Ct. 694, 187 L.Ed.2d 560 [2013] ). We nevertheless reject defendant's contention.
"The applicable culpability standard—intent—require[s] evidence that, in using or threatening physical force, defendant's ‘conscious objective’ was either to compel his victim to deliver up property or to prevent or overcome resistance to the taking" ( People v. Smith , 79 N.Y.2d 309, 315, 582 N.Y.S.2d 946, 591 N.E.2d 1132 [1992] ; see Penal Law § 160.00 [1], [2] ). "Intent may be established by the defendant's conduct and the circumstances" ( People v. Gordon , 23 N.Y.3d 643, 650, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] ). Here, the evidence established that defendant and the codefendant sideswiped the victim's parked vehicle while they were driving past the victim's house. The victim contacted the police. Defendant and the codefendant left the scene, but returned a little later, before the police had arrived. The victim told them that he had contacted the police and took out his cell phone to document the license plate of their vehicle. Defendant punched the victim, who fell to the ground, and defendant and the codefendant continued punching and kicking him while he was on the ground. The victim tried to grab his cell phone, which had fallen on the ground, but defendant picked it up and left, taking the cell phone. Viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that " ‘there is a valid line of reasoning and permissible inferences’ " from which a rational factfinder could have found that the People proved, beyond a reasonable doubt, that defendant used physical force with intent to take the victim's cell phone ( People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; see generally Smith , 79 N.Y.2d at 315, 582 N.Y.S.2d 946, 591 N.E.2d 1132 ) and that the taking was not a mere afterthought to the assault (cf. Matter of Robert C. , 67 A.D.3d 790, 792, 888 N.Y.S.2d 192 [2d Dept. 2009] ; Matter of Niazia F. , 40 AD3d 292, 293 [1st Dept 2007]).
Viewing the evidence in light of the elements of the crime in this nonjury trial (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).