People v. Coble

• Decision Date: 27 April 2012
• Citation: 2012 N.Y. Slip Op. 03309,94 A.D.3d 1520,943 N.Y.S.2d 352
• Parties: The PEOPLE of the State of New York, Respondent, v. Duane COBLE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03309

94 A.D.3d 1520

943 N.Y.S.2d 352

The PEOPLE of the State of New York, Respondent,

v.Duane COBLE, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 27, 2012.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him following a nonjury trial of burglary in the second degree (Penal Law § 140.25[1][d] ) and robbery in the second degree (§ 160.10[2][b] ). At the conclusion of the trial, County Court found two codefendants guilty of burglary in the second degree as a lesser included offense of burglary in the first degree (§ 140.30 [1] ) as charged in the second count of the indictment. In rendering its verdict, however, the court failed to dispose of that count of the indictment with respect to defendant. Notwithstanding that failure, the court sentenced defendant on, inter alia, a conviction of burglary in the second degree. As the People correctly concede, the court's failure to dispose of the second count “constitute[d] a verdict of not guilty with respect to [that] count” (CPL 350.10[5] ). We therefore agree with defendant that he was acquitted of burglary in the first degree and all lesser included offenses thereof, and we modify the judgment accordingly.

Defendant's further contention that the testimony of one of the complainants should have been precluded because she violated the order excluding certain witnesses from observing the trial and that the court's failure to preclude that testimony deprived him of a fair trial is not preserved for our review ( see CPL 470.05[2] ). In any event, that contention is without merit. “It was in the trial court's discretion to grant an order excluding witnesses from observing the trial, and the fact that a witness might have disobeyed such order does not disqualify the witness from testifying” ( People v. Rivera, 182 A.D.2d 1092, 1092–1093, 583 N.Y.S.2d 78, lv. denied 80 N.Y.2d 896, 587 N.Y.S.2d 927, 600 N.E.2d 654; see also People v. Palmer, 272 A.D.2d 891, 891, 709 N.Y.S.2d 716). “[W]here a witness violates an order of exclusion, he or she is subject to court-imposed sanctions[,] the severity of which are committed to the sound discretion of the trial court. And while the sanction may include precluding the witness from testifying, such sanction clearly is the most drastic available and would be appropriate only in the most egregious circumstances” ( People v. Brown, 274 A.D.2d 609, 610, 710 N.Y.S.2d 194). We conclude that the court did not abuse its discretion in permitting the complainant in question to testify, especially when she was cross-examined concerning her alleged violation of the order of exclusion and the court was permitted to consider that violation in assessing her credibility ( see generally Palmer, 272 A.D.2d at 891, 709 N.Y.S.2d 716).

Defendant contends that the evidence is legally insufficient to support the conviction of robbery in the second degree because he was charged as a principal rather than as an accessory and the evidence failed to establish that he acted as a principal. We reject that contention. “It is well established that liability as a principal or an accomplice is not an element of the crime charged and that the People may charge defendant as a principal but establish his guilt as an accomplice” ( People v. Jackson, 286 A.D.2d 946, 946, 731 N.Y.S.2d 419, lv. denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402; see People v. Rivera, 84 N.Y.2d 766, 769–770, 622 N.Y.S.2d 671, 646 N.E.2d 1098; People v. Duncan, 46 N.Y.2d 74, 79–80, 412 N.Y.S.2d 833, 385 N.E.2d 572, rearg. denied 46 N.Y.2d 940, 415 N.Y.S.2d 1027, 388 N.E.2d 372, cert. denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275, rearg. dismissed 56 N.Y.2d 646, 450 N.Y.S.2d 1026, 436 N.E.2d 196). In any event, the evidence is legally sufficient to establish that defendant committed robbery in the second degree as a principal ( see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Viewing the evidence in light of the elements of the crime of robbery in the second degree in this nonjury trial ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict with respect to that crime is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “ ‘Issues of credibility ..., including the weight to be given the backgrounds of the People's witnesses and inconsistencies in their testimony, were properly considered by the [court as the trier of fact] and there is no basis for disturbing its determinations' ” ( People v. Rogers, 70 A.D.3d 1340, 1340, ...