People v. Jones

• Decision Date: 17 February 2022
• Docket Number: 110377
• Citation: 202 A.D.3d 1285,162 N.Y.S.3d 559
• Parties: The PEOPLE of the State of New York, Respondent, v. Santonio J. JONES, Appellant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1285

162 N.Y.S.3d 559

The PEOPLE of the State of New York, Respondent,

v.Santonio J. JONES, Appellant.

110377

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

Calendar Date: January 11, 2022

Decided and Entered: February 17, 2022

Marlene O. Tuczinski, Chatham, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Benjamin Holwitt of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and Ceresia, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered March 7, 2018, upon a verdict convicting defendant of the crime of robbery in the second degree (two counts).

On May 23, 2017, defendant was arrested as a suspect in an armed robbery that occurred in the evening hours on North Street in the Village of Endicott, Broome County. Defendant was thereafter charged by indictment with two counts of robbery in the second degree. Following a jury trial, defendant was convicted as charged. County Court sentenced defendant, as a second violent felony offender, to concurrent prison terms of 10 years, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to prove that he intended to forcibly steal such property from the victims. Initially, the general motion to dismiss made by defendant was not "specifically directed" at the errors now raised upon appeal and, thus, his legal sufficiency argument is not preserved for appellate review ( People v. Baber, 182 A.D.3d 794, 795, 123 N.Y.S.3d 222 [2020] [internal quotation marks and citation omitted], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ). "Nevertheless, in reviewing defendant's challenge to the weight of the evidence, [this Court] necessarily determine[s] whether all of the elements of the charged crimes were proven beyond a reasonable doubt" ( People v. Barzee, 190 A.D.3d 1016, 1017, 138 N.Y.S.3d 718 [2021] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ; see People v. Baber, 182 A.D.3d at 795, 123 N.Y.S.3d 222 ). "In conducting a weight of the evidence review, [this Court] must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Barzee, 190 A.D.3d at 1017–1018, 138 N.Y.S.3d 718 [internal quotation marks and citations omitted]; see People v. Hilton, 185 A.D.3d 1147, 1148, 126 N.Y.S.3d 242 [2020], lv denied 35 N.Y.3d 1095, 131 N.Y.S.3d 302, 155 N.E.3d 795 [2020] ). In undertaking this analysis, "great deference is accorded to the fact-finder's opportunity to view the witnesses, hear the testimony and observe demeanor" ( People v. Walker, 191 A.D.3d 1154, 1156, 142 N.Y.S.3d 648 [2021] [internal quotation marks, brackets and citations omitted], lv denied 37 N.Y.3d 961, 147 N.Y.S.3d 518, 170 N.E.3d 392 [2021] ; see People v. Jackson, 189 A.D.3d 1705, 1708, 137 N.Y.S.3d 217 [2020], lv denied 36 N.Y.3d 1098, 144 N.Y.S.3d 136, 167 N.E.3d 1271 [2021] ).

As relevant here, "[a] person is guilty of robbery in the second degree when he [or she] forcibly steals property and when[,] ... [i]n the course of the commission of the crime or of immediate flight therefrom, he [or she] ... [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" ( Penal Law § 160.10[2][b] ). "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he [or she] uses or threatens the immediate use of physical force upon another person for the purpose of ... [c]ompelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny" ( Penal Law § 160.00[2] ; see People v. Lawrence, 141 A.D.3d 828, 830, 35 N.Y.S.3d 742 [2016] ). The Court of Appeals has held that "[a] defendant must intend that the threatened or actual use of physical force" compels the owner of such property to deliver it up ( People v. Smith, 79 N.Y.2d 309, 312, 582 N.Y.S.2d 946, 591 N.E.2d 1132 [1992] ). "Intent may be established by the defendant's conduct and the circumstances. The element of intent is rarely proved by an explicit expression of culpability by the perpetrator; and competing inferences to be drawn regarding the defendant's intent, if not unreasonable, are the exclusive domain of the finders of fact, not to be disturbed by [this Court]" ( People v. Gordon, 23 N.Y.3d 643, 650, 992 N.Y.S.2d 700, 16 N.E.3d 1178 [2014] [internal quotation marks and citations omitted]; see People v. Gordon, 119 A.D.3d 1284, 1286, 990 N.Y.S.2d 728 [2014], lv denied 24 N.Y.3d 1002, 997 N.Y.S.2d 120, 21 N.E.3d 572 [2014] ).

The facts are not complicated and are not largely disputed by defendant. The victims, both employees of the Village of Endicott Water Department, testified that they were working, "flushing" fire hydrants, at approximately 10:00 p.m. the night of the incident. They were sitting in a Village owned truck with a flashing light on the top when a male, who they identified as defendant, approached the vehicle and asked if either of them had any money. After telling him no, defendant pulled a gun out of the front of his waistband and stated that he "didn't want to have to rob anyone tonight." At that point the victims emptied their wallets and gave defendant three $1 bills. The victims described the gun as a black handgun and both testified that they feared for their lives. After turning the money over, defendant backed away from the vehicle and, before walking away, asked, "Are you sure." The victims waited until defendant was approximately 30 to 40 yards away from their vehicle before calling the police.¹ Police officers arrived on scene soon after and apprehended defendant.

An officer with the Village of Endicott Police Department testified that he responded to the armed robbery call and detained defendant until backup arrived. With assistance, the officer placed defendant under arrest and removed a pistol from defendant's waistband after having observed a "protrusion." The officer testified that one of the victims was brought over to the area where defendant was detained and gave a positive identification. Although the gun was later determined to be a BB gun, the officer testified that there was no carbon dioxide cartridge visible on defendant's gun on the evening of the incident. Other police officers who responded on the night of the incident testified similarly that the gun did not appear to be a BB gun and that the carbon dioxide cartridge was not visible.

Defendant testified that, the night of the incident, he was walking home around 10:00 p.m. when he observed "what looked like a BB gun on the ground." Defendant stated that he confirmed that the object was an air pistol and discovered that it was unloaded. He also testified that he decided to take the BB gun home for his children and that he stowed it in the right side of his waistband. Thereafter, defendant decided that he wanted to purchase a cigar but did not have enough money, so he approached a "work truck with lights flashing" and asked if the occupants had any spare change. Defendant recalled that the passenger stated that he did not have any spare change, so he then looked through the window past the passenger to ask the driver whether he had any change. When he did so, defendant observed that the passenger had been looking down at him and that is when defendant "followed [the passenger's] line of sight" and defendant "saw the air pistol protruding out of [his] shirt." Defendant responded by pulling the BB gun out from his waistband and stated, "Well, I'm not robbing anybody"; he opined that the weapon was on display for about two seconds and that the victims in the vehicle did not visibly react. Defendant asserted that he did not have time to inform the victims that the gun was not real because, as soon as he stated that he was not robbing anyone, the victims gave him the $3 they had between the two of them. Defendant responded by asking, "Are you guys sure? If this [is] your last, I don't...