Opinion
2011-12-1
The PEOPLE of the State of New York, Respondent, v. Brian McFADDEN, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Lauren Stephens–Davidowitz of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Lauren Stephens–Davidowitz of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Thomas R. Villecco of counsel), for respondent.
TOM, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, ROMÁN, JJ.
Judgment, Supreme Court, Bronx County (Ethan Greenberg, J.), rendered July 6, 2009, convicting defendant, after a jury trial, of robbery in the first degree, attempted robbery in the second degree, and criminal possession of stolen property in the third and fourth degrees, and sentencing him, as a persistent violent felony offender, to an aggregate term of 43 1/2 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the first-degree robbery conviction to 20 years to life and directing that all sentences run concurrently, resulting in a new an aggregate term of 20 years to life, and otherwise affirmed.
The verdict was not repugnant, and the court properly denied defendant's application to resubmit the case to the jury. This case involves an attempted carjacking, followed a few minutes later by a completed carjacking. Four days later, the police apprehended defendant and his codefendant while they were in the stolen car.
The only property taken in the completed carjacking was the car. The jury convicted defendant of first-degree robbery, but acquitted him of second-degree robbery under a provision (Penal Law § 160.10[3] ) that required a finding that the property stolen was a motor vehicle as defined in Vehicle and Traffic Law § 125. The jury also convicted defendant of two counts of criminal possession of stolen property, one of which similarly required a finding that the property was a motor vehicle ( see Penal Law § 165.45[5] ). Even if the verdicts appear illogical under the facts of the case, they were not legally repugnant.
The acquittal on the second-degree robbery charge was not conclusive as to any necessary element of any of the convictions ( see People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981] ). “If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” ( People v. Muhammad, 17 N.Y.3d 532, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [2011] ). Regardless of whether a verdict is illogical under the evidence presented, “factual repugnancy—which can be attributed to mistake, confusion, compromise or mercy—does not provide a reviewing court with the power to overturn a verdict” ( id. at *9–10, 447 N.Y.S.2d 132, 431 N.E.2d 617).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( 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 determinations concerning identification and credibility. With regard to the attempted robbery, the totality of defendant's conduct supports the inference of accessorial liability ( see e.g. Matter of Wade F., 49 N.Y.2d 730, 426 N.Y.S.2d 263, 402 N.E.2d 1164 [1980]; Matter of Marc H., 284 A.D.2d 211, 726 N.Y.S.2d 550 [2001]; Matter of Devin R., 254 A.D.2d 221, 679 N.Y.S.2d 138 [1998] ).
The court properly denied defendant's motion to suppress identification testimony. The lineup was not unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). The photographs of the lineup, although of poor quality, were adequate to show that the lineup did not in any way single out defendant. In particular, the hearing evidence supports the court's finding that the disparity between the recorded ages of defendant and the fillers was not reflected in their physical appearances ( see People v. Amuso, 39 A.D.3d 425, 425–426, 835 N.Y.S.2d 114 [2007], lv. denied 9 N.Y.3d 862, 840 N.Y.S.2d 892, 872 N.E.2d 1198 [2007] ). There is no evidence that the witnesses influenced each others' identifications. We have considered and rejected defendant's remaining arguments regarding the lineup.
Defendant's constitutional challenge to his sentencing as a persistent violent felony offender is without merit ( see Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998]; People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913 [2010] ).
We find the sentence excessive to the extent indicated.