People v. Vaughn

• Citation: 527 N.Y.S.2d 869,140 A.D.2d 392
• Parties: The PEOPLE, etc., Respondent, v. Leonard VAUGHN a/k/a Orlando Frazier, Appellant.
• Decision Date: 02 May 1988
• Court: New York Supreme Court Appellate Division

Page 869

527 N.Y.S.2d 869

140 A.D.2d 392

The PEOPLE, etc., Respondent, v. Leonard VAUGHN a/k/a Orlando Frazier, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 2, 1988.

J. Mitchell Rosenberg, Brooklyn, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Brian D. Foley and Linda Starr, of counsel), for respondent.

Before MOLLEN, P.J., and MANGANO, BRACKEN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (O'Brien, J.), rendered September 3, 1986, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant, who was jointly tried with a codefendant, was convicted of the nighttime, gun-point robbery of two complainants. The defendant and his codefendant were apprehended in a public school yard shortly after the robbery, at which time a gun was recovered from the waistband of the defendant's pants.

Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support the defendant's conviction. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5] ).

We find no merit to the defendant's contention that it was error for the trial court to permit into evidence testimony that upon the apprehension of the defendant and his codefendant in a public school yard at night and the discovery of the gun on the defendant's person, the arresting officer, prior to giving any Miranda warnings, asked the codefendant, "Where's the other gun?" and the codefendant answered, "There was only one gun" ( see, New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550). In any event, any error with regard to the admission of this testimony was harmless ( cf., People v. Payne, 35 N.Y.2d 22, 27, 358 N.Y.S.2d 701, 315 N.E.2d 762).

In addition, the trial court properly refused to charge robbery in the second degree pursuant to Penal Law § 160.10(1) as lesser included offenses of the robbery in the first degree counts under Penal Law § 160.15(2) (see, CPL 1.20[37]; People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376; People v. Green, 56 N.Y.2d 427, 431, 452 N.Y.S.2d 389, 437 N.E.2d 1146, rearg. denied, 57 N.Y.2d 775, 454 N.Y.S.2d...