People v. Curry

• Decision Date: 02 June 2011
• Docket Number: 102928
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM T. CURRY, Appellant.

2011 NY Slip Op 04549

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
WILLIAM T. CURRY, Appellant.

102928

Appellate Division of the Supreme Court of the State of New York

Calendar Date: April 27, 2011
Decided and Entered: June 2, 2011

Before: Spain, J.P., Lahtinen, Kavanagh, McCarthy and Garry, JJ.

George J. Hoffman Jr., Albany, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

MEMORANDUM AND ORDER

McCarthy, J.

Appeals from two judgments of the County Court of Broome County (Smith, J.), rendered September 29, 2009, (1) upon a verdict convicting defendant of the crimes of robbery in the second degree (two counts), criminal possession of a weapon in the second degree, assault in the third degree and criminal possession of stolen property in the fifth degree, and (2) convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree.

Defendant and two codefendants encountered the victim on the street. After exchanging gang slang with one of the codefendants, the victim pulled a gun. When a police car drove nearby, the victim put the gun in his pocket. Defendant and the codefendants then beat the victim unconscious and took his jacket, gun and cell phone. As a result, a jury convicted defendant of robbery in the second degree (two counts), criminal possession of a weapon in the second degree, assault in the third degree and criminal possession of stolen property in the fifth degree.¹

Page 2

Based on an unrelated incident, defendant pleaded guilty to attempted robbery in the second degree in exchange for a sentence of three years in prison, followed by three years of postrelease supervision, to run concurrently with the agreed-upon sentences stemming from his convictions after trial. That agreement included concurrent terms of seven years in prison, followed by five years of postrelease supervision, for each of the robbery and weapon possession counts, and one-year sentences for the assault and criminal possession of stolen property counts. County Court imposed the agreed-upon sentences for all of defendant's convictions. He now appeals.

The robbery convictions were supported by legally sufficient evidence and not against the weight of the evidence. Defendant only challenges the proof regarding larcenous intent, namely that he wrongfully took property with the intent to deprive another of that property (see Penal Law § 155.05 [1]; People v Jennings, 69 NY2d 103, 118 [1986]; People v Ocasio, 265 AD2d 675, 676 [1999]). In his statement to police, defendant acknowledged that he and his codefendants knocked the victim to the ground, defendant "stole" the victim's cell phone and the codefendants took his gun. That statement constituted legally sufficient evidence of robbery (see People v Bowman, 79 AD3d 1368, 1369 [2010], lv denied 16 NY3d 828 [2011]). In his grand jury testimony that was admitted at trial, defendant asserted that they only took the gun to prevent the victim from using it. The jury was free to disregard that asserted intent and instead find a larcenous intent based upon defendant's written statements and the victim's testimony. Even if the codefendants took the gun for their stated purpose, larcenous...