People v. Grosso

• Decision Date: 14 October 2021
• Docket Number: 14388,Case No. 2019–05324,Ind. No. 4165/16
• Citation: 152 N.Y.S.3d 588 (Mem),198 A.D.3d 491
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael GROSSO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 491

152 N.Y.S.3d 588 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Michael GROSSO, Defendant–Appellant.

14388

Ind. No. 4165/16

Case No. 2019–05324

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

ENTERED October 14, 2021

Robert S. Dean, Center for Appellate Litigation, New York (Carola M. Beeney of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

Kapnick, J.P., Singh, Shulman, Pitt, Higgitt, JJ.

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered August 13, 2019, convicting defendant, after a jury trial, of attempted robbery in the first degree, attempted robbery in the second degree (two counts), attempted assault in the first degree and assault in the second degree, and sentencing him to an aggregate term of 3½ years, unanimously modified, on the law, to the extent of vacating the convictions of attempted assault in the first degree and assault in the second degree and dismissing those counts, and otherwise affirmed.

The court correctly submitted attempted first and second-degree robbery as lesser included offenses of the respective robbery charges. Defendant and his codefendant, who were unable to locate the money they had intended to steal in the victim's hotel room, each left the room carrying a bag. The victim claimed these bags belonged to him. However, there was a reasonable view of the evidence under which the bags belonged to the defendants themselves, and not to the victim, and that nothing belonging to the victim was actually taken, so that no robbery was completed. Accordingly, submission of attempted robbery was proper (see generally People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014] ).

Defendant's convictions of attempted assault in the first degree and assault in the second degree, charged under an acting in concert theory, were not supported by legally sufficient evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). These charges required proof that when the codefendant stabbed the victim, defendant shared the codefendant's intent to do so; defendant was not convicted of any assault crimes where his liability was based on his intent to commit robbery. During a robbery attempt, the codefendant stabbed the victim from behind several times with a small knife. However, there was no evidence that defendant, who was standing in front of the victim and restraining...