Opinion
KA 01-00073
February 1, 2002.
Appeal from a judgment of Ontario County Court (Henry, Jr., J.), entered July 26, 2000, convicting defendant after a nonjury trial of, inter alia, robbery in the second degree.
JONES, PARKS HAMLIN, LLP, CANANDAIGUA (DAVID M. PARKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing defendant's conviction of assault in the second degree under the second count of the indictment, vacating the sentence imposed thereon and dismissing the second count of the indictment and as modified the judgment is affirmed.
Memorandum:
Defendant appeals from a judgment convicting her following a bench trial of robbery in the second degree (Penal Law § 160.10 [a]) and assault in the second degree (Penal Law § 120.05). As the People correctly concede, the assault conviction cannot stand because the assault count is an inclusory concurrent count of the robbery count ( see, CPL 300.30; 300.40 [3] [b]; People v. Brinson, 216 A.D.2d 900, 901, lv denied 87 N.Y.2d 844; People v. Patterson, 192 A.D.2d 1083). We therefore modify the judgment by reversing defendant's conviction of assault in the second degree under the second count of the indictment, vacating the sentence imposed thereon and dismissing that count. In view of our decision, we do not address defendant's remaining challenges to the assault conviction.
We reject the contention of defendant that County Court employed an incorrect standard of proof in reaching its verdict ( see, People v. Marvin, 216 A.D.2d 930, lv denied 86 N.Y.2d 844) and failed to make the necessary finding that she acted with the mental culpability required for the commission of robbery in the second degree ( see, Penal Law § 20.00). "[I]n a bench trial, it is presumed that the Judge sitting as the trier of fact made his decision based upon 'appropriate legal criteria'" ( People v. Marvin, supra, at 930, quoting People v. Moreno, 70 N.Y.2d 403, 406). We reject the further contention of defendant that the evidence is legally insufficient to establish either her liability as an accessory ( see, Matter of Roddell A., 165 A.D.2d 790, 791; see also, People v. Farmer, 156 A.D.2d 1003, 1003-1004, lv denied 75 N.Y.2d 868) or that the security guard sustained a physical injury ( see, Penal Law § 10.00; People v. Durant, 190 A.D.2d 615, 616, lv denied 81 N.Y.2d 1013; People v. Block, 168 A.D.2d 940, lv denied 77 N.Y.2d 875). Finally, the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495).