People v. Britt
| Decision Date | 03 February 1995 |
| Citation | 212 A.D.2d 1034,623 N.Y.S.2d 58 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Anthony BRITT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Frank J. Nebush, Jr. by Esther Lee, Utica, for appellant.
Michael A. Arcuri by William Weber, Utica, for respondent.
Before DENMAN, P.J., and PINE, LAWTON, DOERR and DAVIS, JJ.
Defendant appeals from his conviction of felony murder, two counts of first degree robbery, and fourth degree conspiracy. Defendant's primary contention is that there was insufficient proof of a completed theft to support the robbery convictions and that, consequently, the felony murder conviction must be set aside. We reject that contention, as we have done on the appeal of the codefendant (see, People v. Glover, 206 A.D.2d 826, 616 N.Y.S.2d 128). In any event, irrespective of the outcome of the challenge to defendant's conviction for robbery, we conclude that the felony murder conviction is supported by legally sufficient evidence that defendant fatally shot the victim during the commission or attempted commission of a robbery (see, People v. Murray, 40 N.Y.2d 327, 334, 386 N.Y.S.2d 691, 353 N.E.2d 605, rearg. denied 40 N.Y.2d 1080, 392 N.Y.S.2d 1028, 360 N.E.2d 963, cert. denied 430 U.S. 948, 97 S.Ct. 1586, 51 L.Ed.2d 796; People v. Dennis, 40 A.D.2d 959, 338 N.Y.S.2d 472, affd. 33 N.Y.2d 996, 353 N.Y.S.2d 964, 309 N.E.2d 427; People v. Scott, 93 A.D.2d 754, 755, 461 N.Y.S.2d 309; People v. Gibson, 65 A.D.2d 235, 238-239, 411 N.Y.S.2d 71, cert. denied 444 U.S. 861, 100 S.Ct. 127, 62 L.Ed.2d 83).
Defendant is not entitled to reversal of his conviction on the ground that he was denied his right to be present at an initial Sandoval conference. The record establishes that defendant was afforded a meaningful opportunity to participate at a de novo Sandoval conference conducted in his presence (see, People v. Favor, 82 N.Y.2d 254, 267, 604 N.Y.S.2d 494, 624 N.E.2d 631, rearg. denied 83 N.Y.2d 801, 611 N.Y.S.2d 137, 633 N.E.2d 492; People v. Vargas, 201 A.D.2d 963, 964, 607 N.Y.S.2d 829, lv. denied 83 N.Y.2d 859, 612 N.Y.S.2d 391, 634 N.E.2d 992). The Sandoval ruling constituted a proper exercise of the court's discretion. Defendant has failed to preserve his contention that the court erred in failing to instruct the jury that a prosecution witness was an accomplice whose testimony had to be corroborated (see, CPL 470.05[2]. Finally, the sentence of 25 years to life imposed...
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