Opinion
835 KA 17–00610
06-29-2018
The PEOPLE of the State of New York, Respondent, v. Robert E. MACLEOD, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law and as a matter of discretion in the interest of justice by reversing that part convicting defendant of robbery in the second degree under count one of the indictment and dismissing that count and by directing that the sentences imposed on counts two and three shall run concurrently with respect to each other and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of robbery in the second degree ( Penal Law § 160.10[2][a] ), robbery in the second degree as a sexually motivated felony ( §§ 130.91, 160.10[2][a] ), and sexual abuse in the first degree (§ 130.65[1] ), defendant contends that County Court abused its discretion in allowing defendant's former coworker to testify that defendant had previously made numerous statements indicating a desire to abduct and sexually assault Asian women. Even assuming, arguendo, that the statements constitute Molineux evidence, we conclude that they were properly admitted to establish the sexual motivation for the commission of this robbery of an Asian woman (see People v. Ramsaran , 154 A.D.3d 1051, 1054, 62 N.Y.S.3d 555 [3d Dept. 2017], lv denied 30 N.Y.3d 1063, 71 N.Y.S.3d 13, 94 N.E.3d 495 [2017] ; People v. Evans , 259 A.D.2d 629, 629, 687 N.Y.S.2d 644 [2d Dept. 1999], lv denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510 [1999] ; cf. People v. Leonard , 29 N.Y.3d 1, 7–8, 51 N.Y.S.3d 4, 73 N.E.3d 344 [2017] ), and the probative value of such evidence "outweighed its tendency to demonstrate defendant's criminal propensity" ( People v. Kirkey , 248 A.D.2d 979, 980, 670 N.Y.S.2d 946 [4th Dept. 1998], lv denied 92 N.Y.2d 900, 680 N.Y.S.2d 64, 702 N.E.2d 849 [1998] ).
We agree with defendant that the conviction of count one of the indictment, charging him with robbery in the second degree, must be reversed and that count dismissed as an inclusory concurrent count of count two, charging him with robbery in the second degree as a sexually motivated felony (see CPL 300.30[4] ; 300.40[3][b]; People v. Perez , 93 A.D.3d 1032, 1039, 942 N.Y.S.2d 227 [3d Dept. 2012], lv denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012]; see also People v. Jackson , 144 A.D.3d 945, 946, 41 N.Y.S.3d 120 [2d Dept. 2016], lv denied 28 N.Y.3d 1185, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ; People v. Dallas , 119 A.D.3d 1362, 1364–1365, 989 N.Y.S.2d 206 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ). We therefore modify the judgment accordingly.
Finally, although we reject defendant's contention that the court erred in directing that the sentence for the sexual abuse count run consecutively to the sentences imposed on the robbery counts (see People v. Smith , 269 A.D.2d 778, 778, 703 N.Y.S.2d 849 [4th Dept. 2000], lv denied 95 N.Y.2d 804, 711 N.Y.S.2d 172, 733 N.E.2d 244 [2000] ; People v. Jones , 137 A.D.2d 766, 767–768, 525 N.Y.S.2d 255 [2d Dept. 1988], lv denied 72 N.Y.2d 862, 532 N.Y.S.2d 512, 528 N.E.2d 902 [1988] ), we conclude that the imposition of consecutive sentences renders the sentence unduly harsh and severe under the circumstances of this case. We therefore further modify the judgment, as a matter of discretion in the interest of justice, by directing that the sentences imposed on counts two and three shall run concurrently with respect to each other (see CPL 470.15[6][b] ).