People v. Curry
| Citation | 924 N.Y.S.2d 217,2011 N.Y. Slip Op. 04549,85 A.D.3d 1209 |
| Parties | The PEOPLE of the State of New York, Respondent,v.William T. CURRY, Appellant. |
| Decision Date | 02 June 2011 |
| Court | New York Supreme Court Appellate Division |
85 A.D.3d 1209
924 N.Y.S.2d 217
2011 N.Y. Slip Op. 04549
The PEOPLE of the State of New York, Respondent,
v.
William T. CURRY, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
June 2, 2011.
[924 N.Y.S.2d 218]
George J. Hoffman Jr., Albany, for appellant.Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.Before: SPAIN, J.P., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.McCARTHY, J.
[85 A.D.3d 1209] 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 [85 A.D.3d 1210] degree and criminal possession of stolen property in the fifth degree.1
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
[924 N.Y.S.2d 219]
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 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 504 N.E.2d 1079 [1986]; People v. Ocasio, 265 A.D.2d 675, 676, 697 N.Y.S.2d 368 [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 A.D.3d 1368, 1369, 912 N.Y.S.2d 344 [2010], lv. denied 16 N.Y.3d 828, 921 N.Y.S.2d 192, 946 N.E.2d 180 [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 intent regarding another item could be inferred because defendant admitted that he took the victim's cell phone, used it to text his friend, and lied to the police about possessing it and how he acquired it. Additionally, the contents of the victim's pants pockets were scattered on the ground at the scene, while defendant and the victim stated that the gun was in his jacket pocket, indicating a larcenous intent in that defendant or his codefendants rifled through the victim's pants pockets for a reason other than disarming him. Hence, the weight of the evidence supported the robbery convictions.
The criminal possession of a weapon conviction was supported by legally sufficient evidence and not against the weight of the [85 A.D.3d 1211]...
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