People v. Knox

• Decision Date: 03 March 2016
• Citation: 25 N.Y.S.3d 751,137 A.D.3d 1330
• Parties: The PEOPLE of The State of New York, Respondent, v. Sloman J. KNOX Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1330
25 N.Y.S.3d 751

The PEOPLE of The State of New York, Respondent,
v.
Sloman J. KNOX Jr., Appellant.

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

March 3, 2016.

25 N.Y.S.3d 751

Frank A. Sarat, Homer, for appellant, and appellant pro se.

Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH and CLARK, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered October 30, 2014, upon a verdict convicting defendant of the crimes of attempted robbery in the first degree and attempted robbery in the second degree.

Defendant was indicted and charged-as an accomplice-with attempted robbery in the first degree and attempted robbery in the second degree. The charges stemmed from an incident that began on the morning of August 15, 2013 when defendant agreed to accompany Robert Rouille for a car ride and culminated in Rouille's failed attempt to collect on a drug debt from one Francis Backus. Following a jury trial, defendant was convicted on both counts and thereafter was sentenced, as a second felony offender, to five years in prison followed by five years of postrelease supervision for his conviction of attempted robbery in the first degree and three years in prison followed by five years of postrelease

25 N.Y.S.3d 752

supervision for his conviction of attempted robbery in the second degree, said sentences to run concurrently. Defendant now appeals.¹

Defendant's primary argument upon appeal is that the verdict is not supported by legally sufficient evidence-specifically with respect to the issue of defendant's larcenous intent. Insofar as is relevant here, "[a] person is guilty of attempted robbery in the first degree when, with intent to forcibly steal property, he or she engages in conduct which tends to do so, ‘and when, in the course of the attempted commission of the crime or of immediate flight therefrom, he or she or another participant in the crime ... displays what appears to be a ... firearm’ " (People v. Osinowo, 28 A.D.3d 1011, 1012, 813 N.Y.S.2d 283 [2006] [brackets omitted], lv. denied 7 N.Y.3d 792, 821 N.Y.S.2d 822, 854 N.E.2d 1286 [2006], quoting Penal Law § 160.15[4] ; see Penal Law § 110.00 ). Similarly, a person is guilty of attempted robbery in the second degree when he or she undertakes to forcibly steal property and, "[i]n the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant ... [c]auses physical injury to any" nonparticipant in the crime (Penal Law § 160.10[2][a] ; see Penal Law § 110.00 ; People v. Zabala, 290 A.D.2d 578, 580, 735 N.Y.S.2d 244 [2002], lv. denied 97 N.Y.2d 735, 740 N.Y.S.2d 708, 767 N.E.2d 165 [2002] ). A defendant may be found guilty of these crimes "under a theory of accomplice liability when such defendant, with the intent to forcibly steal property, ‘solicits, requests, commands, importunes, or intentionally aids another person to engage in [such] conduct’ " (People v. Vicioso, 116 A.D.3d 1250, 1251, 983 N.Y.S.2d 691 [2014] [brackets omitted], quoting Penal Law § 20.00 ; see People v. Bush, 75 A.D.3d 917, 918, 905 N.Y.S.2d 699 [2010], lv. denied 15 N.Y.3d 919, 913 N.Y.S.2d 646, 939 N.E.2d 812 [2010] ; cf. People v. Daniels, 24 A.D.3d 970, 971, 805 N.Y.S.2d 485 [2005], lv. denied 6 N.Y.3d 811, 812 N.Y.S.2d 451, 845 N.E.2d 1282 [2006] ). While it is true that a defendant's mere presence at the scene of the crime is, standing alone, insufficient to support a finding of criminal liability (see People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995] ; People v. Chardon, 83 A.D.3d 954, 957, 922 N.Y.S.2d 127 [2011], lv. denied 18 N.Y.3d 857, 938 N.Y.S.2d 865, 962 N.E.2d 290 [2011] ; see also People v. Robinson, 53 A.D.3d 681, 683 n., 860 N.Y.S.2d 680 [2008], lv. denied 11 N.Y.3d 794, 866 N.Y.S.2d 620, 896 N.E.2d 106 [2008] ), it is equally true that the requisite intent "may be inferred from a defendant's conduct and from the surrounding circumstances" (People v. Bush, 75 A.D.3d at 918, 905 N.Y.S.2d 699 ; see People v. Chaplin, 134 AD3d 1148, 1151, 21 N.Y.S.3d 418 [2015] ; People v. Rupert, 118 A.D.3d 1126, 1127, 987 N.Y.S.2d 678 [2014] ; People v. Vicioso, 116 A.D.3d at 1251, 983 N.Y.S.2d 691 ; People v. Callicut, 101 A.D.3d 1256, 1258, 956 N.Y.S.2d 607 [2012], lvs. denied 20 N.Y.3d 1096, 1097, 965 N.Y.S.2d 792, 793, 988 N.E.2d 530, 531 [2013] ).

Here, Backus testified that he left his house on the morning in question at approximately 9:00 a.m. intending to walk to a local store. Almost immediately, a gray four-door sedan pulled up alongside him; defendant, whom Backus had known for three or four years, was driving, and Rouille, whom Backus had known for approximately 20 years, was the front-seat passenger. According to Backus, he had

25 N.Y.S.3d 753

been involved in drug transactions with Rouille for the past month or so. Consistent with their established procedure, Rouille would "front" drugs-usually marihuana-to Backus on credit with the understanding that Backus would pay him as soon as possible.² On this particular morning, Backus owed Rouille $300 for marihuana.

Backus testified that Rouille told him to get in the car; Backus complied and climbed into the rear passenger seat of the vehicle. Rouille then inquired as to whether Backus had the money; when Backus indicated that he did not have the $300...