Opinion
107198.
03-03-2016
The PEOPLE of The State of New York, Respondent, v. Sloman J. KNOX Jr., Appellant.
Frank A. Sarat, Homer, for appellant, and appellant pro se. Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
Frank A. Sarat, Homer, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
Opinion
EGAN JR., J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered October 30, 2014, upon a verdict convicting defendant of the crimes of attempted robbery in the first degree and attempted robbery in the second degree.
Defendant was indicted and charged-as an accomplice-with attempted robbery in the first degree and attempted robbery in the second degree. The charges stemmed from an incident that began on the morning of August 15, 2013 when defendant agreed to accompany Robert Rouille for a car ride and culminated in Rouille's failed attempt to collect on a drug debt from one Francis Backus. Following a jury trial, defendant was convicted on both counts and thereafter was sentenced, as a second felony offender, to five years in prison followed by five years of postrelease supervision for his conviction of attempted robbery in the first degree and three years in prison followed by five years of postrelease supervision for his conviction of attempted robbery in the second degree, said sentences to run concurrently. Defendant now appeals.
According to the People, Rouille previously pleaded guilty to undisclosed charges related to this incident.
Defendant's primary argument upon appeal is that the verdict is not supported by legally sufficient evidence-specifically with respect to the issue of defendant's larcenous intent. Insofar as is relevant here, “[a] person is guilty of attempted robbery in the first degree when, with intent to forcibly steal property, he or she engages in conduct which tends to do so, ‘and when, in the course of the attempted commission of the crime or of immediate flight therefrom, he or she or another participant in the crime ... displays what appears to be a ... firearm’ ” (People v. Osinowo, 28 A.D.3d 1011, 1012, 813 N.Y.S.2d 283 2006 [brackets omitted], lv. denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 2006, quoting Penal Law § 160.154; see Penal Law § 110.00). Similarly, a person is guilty of attempted robbery in the second degree when he or she undertakes to forcibly steal property and, “[i]n the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant ... [c]auses physical injury to any” nonparticipant in the crime (Penal Law § 160.102[a]; see Penal Law § 110.00; People v. Zabala, 290 A.D.2d 578, 580, 735 N.Y.S.2d 244 2002, lv. denied 97 N.Y.2d 735, 740 N.Y.S.2d 708, 767 N.E.2d 165 2002 ). A defendant may be found guilty of these crimes “under a theory of accomplice liability when such defendant, with the intent to forcibly steal property, ‘solicits, requests, commands, importunes, or intentionally aids another person to engage in [such] conduct’ ” (People v. Vicioso, 116 A.D.3d 1250, 1251, 983 N.Y.S.2d 691 2014 [brackets omitted], quoting Penal Law § 20.00; see People v. Bush, 75 A.D.3d 917, 918, 905 N.Y.S.2d 699 2010, lv. denied 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 2010; cf. People v. Daniels, 24 A.D.3d 970, 971, 805 N.Y.S.2d 485 2005, lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 2006 ). While it is true that a defendant's mere presence at the scene of the crime is, standing alone, insufficient to support a finding of criminal liability (see People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 1995; People v. Chardon, 83 A.D.3d 954, 957, 922 N.Y.S.2d 127 2011, lv. denied 18 N.Y.3d 857, 938 N.Y.S.2d 865, 962 N.E.2d 290 2011; see also People v. Robinson, 53 A.D.3d 681, 683 n., 860 N.Y.S.2d 680 2008, lv. denied 11 N.Y.3d 794, 866 N.Y.S.2d 620, 896 N.E.2d 106 2008 ), it is equally true that the requisite intent “may be inferred from a defendant's conduct and from the surrounding circumstances” (People v. Bush, 75 A.D.3d at 918, 905 N.Y.S.2d 699; see People v. Chaplin, 134 AD3d 1148, 1151, 21 N.Y.S.3d 418 2015; People v. Rupert, 118 A.D.3d 1126, 1127, 987 N.Y.S.2d 678 2014; People v. Vicioso, 116 A.D.3d at 1251, 983 N.Y.S.2d 691; People v. Callicut, 101 A.D.3d 1256, 1258, 956 N.Y.S.2d 607 2012, lvs. denied 20 N.Y.3d 1096, 1097, 965 N.Y.S.2d 792, 793, 988 N.E.2d 530, 531 2013 ).
Here, Backus testified that he left his house on the morning in question at approximately 9:00 a.m. intending to walk to a local store. Almost immediately, a gray four-door sedan pulled up alongside him; defendant, whom Backus had known for three or four years, was driving, and Rouille, whom Backus had known for approximately 20 years, was the front-seat passenger. According to Backus, he had been involved in drug transactions with Rouille for the past month or so. Consistent with their established procedure, Rouille would “front” drugs-usually marihuana-to Backus on credit with the understanding that Backus would pay him as soon as possible. On this particular morning, Backus owed Rouille $300 for marihuana.
Backus testified that it typically took him one week to secure the funds to pay Rouille, and he acknowledged that he had experienced difficulties paying Rouille in the past.
Backus testified that Rouille told him to get in the car; Backus complied and climbed into the rear passenger seat of the vehicle. Rouille then inquired as to whether Backus had the money; when Backus indicated that he did not have the $300 that he owed, Rouille asked Backus where his girlfriend could be found and thereafter told defendant to drive to the girlfriend's residence. Backus testified that, while en route to his girlfriend's house, Rouille retrieved a gun from underneath the driver's seat—specifically, a large-caliber snub-nose revolver—and informed Backus, “If I don't get my money today, either you or [your girlfriend is] getting shot.” Backus further testified that, during the drive to his girlfriend's house, defendant and Rouille “were talking back and forth the whole time” and, at one point, Backus said to defendant, “Yeah, you were right, these people can't be trusted, they're selfish”—a comment that Backus understood to be a reference to drug addicts.
The record suggests that Backus' girlfriend also had purchased drugs from Rouille in the past and may have owed Rouille money at this point in time.
Upon arriving at the girlfriend's apartment complex, Backus and Rouille exited the vehicle and eventually were buzzed into the premises. Defendant remained in the vehicle. Once inside the apartment, Rouille pointed the gun at Backus' girlfriend and “told her [s]he had 30 minutes to get the money or else somebody [was] getting shot.” A conversation between Rouille and Backus' girlfriend then ensued; when Rouille informed her that she now had 15 minutes to get his money, Backus' girlfriend told Rouille to go ahead and shoot. Rouille then dropped the weapon and punched the woman with his fist, at which point Backus intervened. The girlfriend fled the apartment while Rouille assaulted Backus-repeatedly striking Backus with his fists and the gun. When the physical struggle ended, Rouille began loading the revolver; when Backus told him to put the gun down, Rouille responded by searching the apartment for Backus' girlfriend and, upon discovering that she was gone, left the premises. Photographs contained in the record on appeal depict various cuts and bruises to Backus' face and head, and a live round of ammunition subsequently was recovered from the apartment.
Defendant, who had been waiting in the car the entire time, saw Backus' girlfriend hurry out of the building, place a call on her cell phone, enter her vehicle and drive away. According to defendant, he immediately “had a bad feeling” that “something wasn't right” and, after waiting another minute or two, drove away-leaving Rouille behind. A short time later, however, Rouille called defendant and, in response to Rouille's request, defendant turned around and headed back towards the apartment-picking up Rouille en route. Defendant then drove to Rouille's residence, dropped him off and went to work. Video surveillance records from the girlfriend's apartment complex depict the grey sedan arriving at the scene, Backus and Rouille exiting the vehicle, Backus and Rouille being admitted into the building by Backus' girlfriend, the girlfriend hastily exiting the building and driving away, the grey sedan-admittedly driven by defendant-pull away a short time later, Rouille exiting the building and leaving the scene on foot and Backus thereafter stepping outside, presumably looking for his girlfriend.
The foregoing proof, in our view, is legally sufficient to sustain the charges at issue. Defendant indeed testified-and Backus readily confirmed-that defendant never threatened Backus, displayed a gun or attempted to rob him, and it is clear from the testimony and the video surveillance tapes that defendant never entered the apartment belonging to Backus' girlfriend or otherwise directly participated in the events that transpired therein. That said, there nonetheless is ample proof from which the jury reasonably could infer that defendant shared Rouille's intent to commit the underlying crimes-despite the fact that defendant's participation was limited to being the getaway driver (see People v. Jackson, 44 N.Y.2d 935, 937, 408 N.Y.S.2d 315, 380 N.E.2d 147 1978; People v. Keitt, 42 N.Y.2d 926, 927, 397 N.Y.S.2d 997, 366 N.E.2d 1350 1977; People v. Rupert, 118 A.D.3d at 1127, 987 N.Y.S.2d 678; People v. Gage, 259 A.D.2d 837, 838–839, 687 N.Y.S.2d 202 1999, lv. denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510 1999; compare People v. Taylor, 141 A.D.2d 581, 581–582, 529 N.Y.S.2d 191 1988, lv. denied 72 N.Y.2d 962, 534 N.Y.S.2d 675, 531 N.E.2d 308 1988; People v. Rivera, 62 A.D.2d 1005, 1005, 403 N.Y.S.2d 294 1978 ). Specifically, defendant drove Rouille to the home of Backus' girlfriend (1) knowing that Backus owed Rouille money, (2) after Rouille displayed a gun, and (3) after Rouille informed Backus—while in the car and in defendant's presence—that either he would get his money or someone would get shot. More to the point, defendant remained at the premises—waiting for Rouille, who was armed with a gun, to emerge—until he saw Backus' girlfriend flee the scene. Even then, despite having witnessed what had transpired between Backus and Rouille in the car and thereafter being presented with circumstances suggesting that something was amiss at the apartment, defendant still heeded Rouille's subsequent request to turn around and return to the scene in order to pick him up. Although defendant testified that Rouille never threatened to shoot Backus and that there was “never no gun involved at all,” this conflicting testimony presented a credibility issue for the jury to resolve (see People v. Haardt, 129 A.D.3d 1322, 1323, 11 N.Y.S.3d 727 2015 ). In any event, “strict liability for an aggravating circumstance”—such as the use of a firearm—“attaches to an accomplice, regardless of his or her degree of intent, knowledge or conduct with respect to the aggravating circumstance” (People v. Vicioso, 116 A.D.3d at 1251, 983 N.Y.S.2d 691 [internal quotation marks, brackets and citation omitted] ).
Finally, defendant's pro se claim—that the People deliberately solicited impermissible and prejudicial testimony from Backus on their case-in-chief—is unpreserved for our review as no objection thereto was made during the course of the trial (see People v. Williams, 61 A.D.3d 1383, 1383, 879 N.Y.S.2d 264 2009, lv. denied 13 N.Y.3d 751, 886 N.Y.S.2d 105, 914 N.E.2d 1023 2009; see also People v. Damato, 79 A.D.3d 1060, 1060, 913 N.Y.S.2d 740 2010 ) and, in any event, is lacking in merit. Accordingly, the judgment of conviction is affirmed.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., LYNCH and CLARK, JJ., concur.