Opinion
744 KA 14–01316
07-31-2019
The PEOPLE of the State of New York, Respondent, v. Kenneth R. ROGERS, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, TREVETT CRISTO P.C. (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, TREVETT CRISTO P.C. (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN 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 affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of robbery in the second degree ( Penal Law § 160.10[1] ), defendant contends that Supreme Court erred in refusing his request to charge robbery in the third degree (§ 160.05) as a lesser included offense. We reject that contention. It is undisputed that robbery in the third degree is a lesser included offense of robbery in the second degree as charged under Penal Law § 160.10(1) (see People v. Bayard, 32 A.D.3d 328, 329–330, 819 N.Y.S.2d 754 [1st Dept. 2006] ; People v. Ceballos, 98 A.D.2d 475, 476–477, 471 N.Y.S.2d 860 [2d Dept. 1984] ). Nevertheless, when the evidence is viewed in the light most favorable to defendant (see People v. Johnson, 45 N.Y.2d 546, 549, 410 N.Y.S.2d 569, 382 N.E.2d 1345 [1978] ), we conclude that "[t]here is no reasonable view of the evidence by which defendant was guilty of forcibly stealing property but that he was not aided by another person actually present" ( People v. Bennett, 147 A.D.2d 967, 968, 537 N.Y.S.2d 416 [4th Dept. 1989] ; see People v. Gray, 77 A.D.3d 766, 766–767, 909 N.Y.S.2d 492 [2d Dept. 2010], lv denied 16 N.Y.3d 797, 919 N.Y.S.2d 514, 944 N.E.2d 1154 [2011] ; see generally People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 [1995] ). Based on this record, " ‘[i]n order to find that defendant robbed the victim but acted alone, the jury would have been required to speculate that the robbery was committed in some alternative manner not described in any testimony’ " ( Gray, 77 A.D.3d at 767, 909 N.Y.S.2d 492 ). Contrary to defendant's contention, this is not a case "where proof of guilt of the greater and lesser offenses is found essentially in the testimony of one witness" such that the jury could find the lesser upon rejecting a portion of the testimony of the witness ( People v. Negron, 91 N.Y.2d 788, 792, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ). Rather, this is a situation in which "no identifiable record basis exists upon which the jury might reasonably differentiate between segments of a witness' testimony" ( id. ).
Contrary to defendant's remaining contention, the sentence is not unduly harsh or severe.