Opinion
7219 Ind. 3597/15
01-10-2019
The PEOPLE of the State of New York, Respondent, v. Marcelino ALLENDE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.
Renwick, J.P., Gische, Kahn, Kern, Moulton, JJ.
Except as indicated, defendant's arguments concerning the weight of the evidence are unavailing (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. Defendant's accessorial liability could be reasonably inferred from the entire course of conduct of defendant and his codefendant before, during and after the crime (see generally Matter of Juan J., 81 N.Y.2d 739, 593 N.Y.S.2d 768, 609 N.E.2d 121 [1992] ; People v. Allah, 71 N.Y.2d 830, 527 N.Y.S.2d 731, 522 N.E.2d 1029 [1988] ).
However, the evidence did not establish the element of display of what appeared to be a firearm (see People v. Smith, 29 N.Y.3d 91, 96, 52 N.Y.S.3d 692, 75 N.E.3d 84 [2017] ). The robbery was accomplished by assaulting the victim and taking his wallet. Although an eyewitness saw the display of what appeared to be a firearm, there was no evidence that the victim ever saw it (see People v. Moon, 205 A.D.2d 372, 372, 613 N.Y.S.2d 377 [1st Dept. 1994], lv denied 84 N.Y.2d 870, 618 N.Y.S.2d 16, 642 N.E.2d 335 [1994] ).
We perceive no basis for reducing the remaining sentences.
The Decision and Order of this Court entered herein on October 18, 2018 ( 165 A.D.3d 507, 83 N.Y.S.3d 898 [1st Dept. 2018] ) is hereby recalled and vacated (see M–5305, 2019 WL 150433 decided simultaneously herewith).
While I agree to vacate defendant's conviction for robbery in the first degree and affirm the conviction for robbery in the second degree, a sentence of imprisonment of five years on the second-degree count would be more appropriate under the facts of this case than the term of imprisonment of eight years imposed by the court.
Defendant was only 21 years old when he was involved in the instant crime and this is his first felony conviction. Defendant's mother died when he was 16 years old and he has struggled with untreated depression and bipolar disorder. Under the circumstances, "I do not see how the principal objectives of societal protection, rehabilitation, and deterrence are served by the punishment imposed by the Supreme Court as affirmed by this Court" ( People v. Watson, 163 A.D.3d 855, 880, 81 N.Y.S.3d 449 [2d Dept. 2018] [Barros dissent]; see also People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864 [1981] : People v. Oliver, 1 N.Y.2d 152, 160, 151 N.Y.S.2d 367, 134 N.E.2d 197 [1956] ). Instead, in my view, incarceration in state prison for a term of imprisonment of five years would be sufficient to impress upon defendant the seriousness of his actions, and to ensure that he receives the medical treatment and counseling which he needs.
Although vicariously liable for the codefendant's actions, significantly, it is undisputed that it was the codefendant, Nicholas Caldwell, who violently punched the victim, resulting in his fall to the sidewalk. Yet, the codefendant received only a five-year sentence of imprisonment, while defendant, who went to trial, received the harsher term of eight years. Under the circumstances, the imposition of eight years of imprisonment appears to be an unnecessarily harsh response to defendant's exercise of his right to go to trial.