Opinion
590 KA 15-01823
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Robert D. BREWER, Defendant-Appellant.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed to an indeterminate term of incarceration of 20 years to life and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ). Defendant's conviction stems from his participation in a murder along with two other codefendants. At trial, a witness testified that defendant pointed a gun at the victim and shot him. In defendant's written statement to the police, he admitted that he agreed to kill the victim for one of the codefendants in exchange for a sum of money, that he retrieved his gun from his house and drove from Elmira to Rochester with the codefendants to execute the plan, that he waited with the codefendants for the victim to arrive at a house, and that when the victim arrived, he pointed the gun at him and threatened to "shoot him in the brain." Defendant further stated, however, that he "couldn't pull the trigger" even though a codefendant was telling him to "shoot him, shoot him." That codefendant then "snatched" the gun out of defendant's hand, said "Fxxx it I'll do it," and shot the victim multiple times. Defendant was previously convicted of criminal possession of a weapon in the second degree stemming from this incident, which conviction we affirmed ( People v. Brewer , 118 A.D.3d 1407, 988 N.Y.S.2d 365 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). He was also convicted, after a separate trial, of murder in the second degree stemming from this incident, but we reversed that conviction and remitted for a new trial on that count of the indictment based on our determination that Supreme Court (Egan, J.) erred in charging the jury with the affirmative defense of renunciation over the objection of defense counsel ( People v. Brewer , 118 A.D.3d 1409, 988 N.Y.S.2d 752 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ).
In this appeal, we reject defendant's contention that the People were judicially estopped from proceeding on a theory of accomplice liability inasmuch as "the People neither argued for nor prevailed upon a contrary position in a prior proceeding" ( People v. Adam , 126 A.D.3d 1169, 1170, 5 N.Y.S.3d 592 [3d Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3618529 [2015] ). Defendant relies upon statements made by the prosecutor when opposing defendant's request to dismiss the count of intentional murder in the indictment based upon an executed cooperation agreement, the court's denial of which we upheld on the prior appeal from the murder conviction ( Brewer , 118 A.D.3d at 1409-1411, 988 N.Y.S.2d 365 ). Specifically, the prosecutor had indicated that defendant's statement to the police, on its own, would not give the prosecutor a legal basis to charge him with intentional murder under any theory of liability, but that, after obtaining a statement from a witness who said that defendant shot the victim, the prosecutor voided the cooperation agreement on the ground that defendant had provided false information. Thus, the People did not argue or prevail upon a contrary position in the earlier proceeding because the issue whether defendant's statement, if accepted as true, would support a charge of murder on a theory of accomplice liability was irrelevant to the issue before the court and this Court, which was whether the prosecutor had a good faith belief that defendant failed to provide truthful information ( id. at 1411, 988 N.Y.S.2d 365 ).
We reject defendant's contention that the court (Affronti, J.) erred in instructing the jury on both principal and accomplice liability. It is well settled that "there is no legal distinction between liability as a principal or criminal culpability as an accomplice" ( People v. Rivera , 84 N.Y.2d 766, 769, 622 N.Y.S.2d 671, 646 N.E.2d 1098 [1995] ; see People v. Mateo , 2 N.Y.3d 383, 406, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ; People v. Atkinson , 185 A.D.3d 1438, 1439, 128 N.Y.S.3d 129 [4th Dept. 2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 288, 155 N.E.3d 781 [2020] ). Thus, the court properly instructed the jurors that, while their verdict needed to be unanimous, they did not need to be unanimous on whether defendant committed the crime personally or by acting in concert with another or others (see Mateo , 2 N.Y.3d at 406, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; CJI2d[NY] Accessorial Liability n 7). Contrary to defendant's contention, the court's instruction was not contrary to Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 1395-1397, 206 L.Ed.2d 583 (2020) inasmuch as, unlike Ramos , defendant here was convicted upon a unanimous verdict.
We reject defendant's contention that the evidence is legally insufficient to establish his liability as an accessory. "Accessorial liability requires only that defendant, acting with the mental culpability required for the commission of the crime, intentionally aid another in the conduct constituting the offense" ( People v. Pizarro , 151 A.D.3d 1678, 1681, 57 N.Y.S.3d 283 [4th Dept. 2017], lv denied 29 N.Y.3d 1132, 64 N.Y.S.3d 682, 86 N.E.3d 574 [2017] [internal quotation marks omitted]; see Penal Law § 20.00 ). 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] ), the factfinder could have reasonably concluded that defendant and the codefendants "jointly planned, prepared for and committed the murder of the victim" ( People v. Glanda , 5 A.D.3d 945, 949, 774 N.Y.S.2d 576 [3d Dept. 2004], lv denied 3 N.Y.3d 640, 782 N.Y.S.2d 412, 816 N.E.2d 202 [2004], reconsideration denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831 [2004], cert denied 543 U.S. 1093, 125 S.Ct. 973, 160 L.Ed.2d 906 [2005] ; see People v. Williams , 179 A.D.3d 1502, 1502-1503, 118 N.Y.S.3d 847 [4th Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020] ; People v. Morris , 229 A.D.2d 451, 451, 644 N.Y.S.2d 901 [2d Dept. 1996], lv denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623 [1996] ; see generally People v. Cabey , 85 N.Y.2d 417, 421-422, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), 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] ).
We reject defendant's contention that the court erred in denying his request to admit in evidence the results of his polygraph examination (see People v. Shedrick , 66 N.Y.2d 1015, 1018, 499 N.Y.S.2d 388, 489 N.E.2d 1290 [1985], rearg denied 67 N.Y.2d 758, 500 N.Y.S.2d 1028, 490 N.E.2d 1234 [1986] ; People v. Weber , 40 A.D.3d 1267, 1267, 836 N.Y.S.2d 327 [3d Dept. 2007], lv denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901 [2007] ; see also People v. De Lorenzo , 45 A.D.3d 1402, 1402-1403, 845 N.Y.S.2d 652 [4th Dept. 2007], lv denied 10 N.Y.3d 763, 854 N.Y.S.2d 325, 883 N.E.2d 1260 [2008] ). We also reject defendant's further contention that his absence from a pretrial appearance denied him his right to be present at a material stage of the criminal proceeding. At the proceeding, the court, the prosecutor, and defense counsel discussed only questions of law regarding the admissibility of defendant's polygraph examination results and the judicial estoppel issue, and thus defendant's presence was not required (see People v. Velasco , 77 N.Y.2d 469, 472, 568 N.Y.S.2d 721, 570 N.E.2d 1070 [1991] ; People v. Butler , 96 A.D.3d 1367, 1368, 946 N.Y.S.2d 343 [4th Dept. 2012], lv denied 20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 [2012] ; see generally People v. Chisolm , 85 N.Y.2d 945, 947, 626 N.Y.S.2d 1002, 650 N.E.2d 849 [1995] ). The facts regarding those issues were uncontested and, contrary to defendant's contention, did not implicate his "peculiar factual knowledge" ( People v. Fabricio , 3 N.Y.3d 402, 406, 787 N.Y.S.2d 219, 820 N.E.2d 863 [2004] ).
We agree with defendant, however, that the sentence imposed, an indeterminate term of incarceration of 25 years to life, is unduly harsh and severe. Under the circumstances of this case, including that defendant was 18 years old at the time of the incident, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentence to an indeterminate term of incarceration of 20 years to life (see generally CPL 470.15 [6] [b] ), with the sentence remaining concurrent to the sentence previously imposed on the count of criminal possession of a weapon in the second degree.
We have considered defendant's remaining contentions and conclude that they are without merit.