People v. Miller

• Citation: 661 N.E.2d 1358,638 N.Y.S.2d 577,87 N.Y.2d 211
• Parties: , 661 N.E.2d 1358 The PEOPLE of the State of New York, Appellant-Respondent, v. Timothy MILLER, Respondent-Appellant.
• Decision Date: 07 December 1995
• Court: New York Court of Appeals

Page 577

638 N.Y.S.2d 577

87 N.Y.2d 211, 661 N.E.2d 1358

The PEOPLE of the State of New York, Appellant-Respondent, v. Timothy MILLER, Respondent-Appellant.

Court of Appeals of New York.

Dec. 7, 1995.

CROSS APPEALS, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered July 15, 1994, which modified, on the law, and, as modified, affirmed a judgment of the Monroe County Court (William H. Bristol, J.), rendered upon a verdict convicting defendant of attempted robbery in the first degree and imposing sentence. The modification consisted of reducing defendant's conviction to attempted robbery in the third degree, vacating the sentence imposed and remitting the matter to Monroe County Court for resentencing.

People v. Miller, 201 A.D.2d 109, 615 N.Y.S.2d 172, reversed.

[87 N.Y.2d 212] Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen, of counsel), for appellant-respondent.

Edward J. Nowak, Public Defender of Monroe County, Rochester (David Juergens, of counsel), for respondent-appellant.

OPINION OF THE COURT

CIPARICK, Judge.

The Appellate Division ruled that attempted robbery in the first degree is a nonexistent crime. A Judge of this Court granted the People leave to appeal and defendant leave to cross-appeal for us to consider this ruling. For the reasons that follow, we now hold that attempted robbery in the first degree is a legally cognizable crime.

Defendant was indicted and charged with two counts of murder in the second degree (Penal Law § 125-25[1], [3] and two counts of robbery in the first degree (Penal Law § 160.15[1], [2] stemming from his participation in a foiled robbery that left the victim dead from a gunshot wound to the neck. There was testimony at trial that defendant was part of a group of about 15 teenagers who approached the victim, Charles Grimes, before Grimes entered a grocery store. Grimes apparently was known in the area for shoplifting clothing and then recycling it for sale, and had just offered to sell a pair of jeans from the plastic bag he was carrying. While Grimes was in the grocery store, defendant and five others from the group congregated by the bleachers outside a nearby recreation center, where one of the teenagers displayed a gun to his companions.

Approximately 45 minutes to an hour later, this group of six returned to the vicinity of the grocery store and defendant declared that he was going to snatch Grimes's bag. Two of the teenagers left, stating they wanted no part of "it." When Grimes subsequently exited the store, the four remaining teenagers pounced on him and defendant attempted to grab the bag. Grimes struggled free, pushed defendant against a wall and hit him with a can. Grimes retrieved his bag, which he dropped during the scuffle, and announced that nothing was going to be taken from him. A shot then rang out. Grimes, holding his bag, bolted with the four teenagers in pursuit. Bystanders testified that they heard 6 to 8 gunshots around the time of this chase. Grimes ultimately collapsed, and a crowd of people gathered around him. The bag of clothing was no longer in sight. A police search of the area failed to turn up a bag containing clothing, although a knit hat and a sweatshirt were recovered on the sidewalk about 150 feet from the grocery store. Grimes died from the single gunshot wound to his neck. The trial testimony was inconclusive as to which teenager possessed the gun.

At trial, defendant requested that the court charge attempted robbery in the first degree and attempted robbery in the third degree as lesser included offenses of robbery in the first degree as charged in counts three and four of the indictment. Count three of the indictment charged that defendant, in violation of Penal Law §§ 20.00 and 160.15(1), "forcibly stole property * * * a bag of clothing, shirts and pants from Charles Grimes, and in the course of the commission of the crime or of immediate flight therefrom, caused serious physical injury to Charles Grimes, who was not a participant in the crime." Count four charged that defendant, in violation of Penal Law §§ 20.00 and 160.15(2), "forcibly stole property * * * and in the course of the commission of the crime or of immediate flight therefrom, was armed with a deadly weapon * * * a handgun." The court granted defendant's charge-down request, and after due deliberation, the jury convicted defendant of attempted robbery in the first degree under count three and acquitted him of all remaining counts. Defendant was sentenced to an indeterminate term of 5 to 15 years.

Defendant appealed, arguing that because one of the components of robbery in the first degree is the unintended result of causing serious physical injury, attempted robbery in the first degree is a legal impossibility as the law does not recognize an attempt to commit a crime with an unintended result (see, People v. Campbell, 72 N.Y.2d 602, 535 N.Y.S.2d 580, 532 N.E.2d 86). The Appellate Division agreed, and modified by reducing the judgment of conviction to attempted robbery in the third degree, vacated the sentence and remitted to County Court for resentencing (see, People v. Miller, 201 A.D.2d 109, 615 N.Y.S.2d 172). We now reverse.

I

The essence of the crime of robbery is forcible stealing. Under Penal Law § 160.00, a robbery occurs when a person forcibly steals property by the use of, or the threatened use of, immediate physical force upon another person for the purpose of compelling that person to deliver up property or to prevent or overcome resistance to the taking (see, Penal Law § 160.00[1], [2]; People v. Smith, 79 N.Y.2d 309, 582 N.Y.S.2d 946, 591 N.E.2d 1132; People v. Lopez, 73 N.Y.2d 214, 538 N.Y.S.2d 788, 535 N.E.2d 1328; People v. Baskerville, 60 N.Y.2d 374, 469 N.Y.S.2d 646, 457 N.E.2d 752; see also, CJI[NY]2d PL art. 160, at 160-1002--160-1003).

The lowest robbery offense, robbery in the third degree, is committed when a person engages in behavior that results in the forcible taking of another's property as stated in the definition of robbery in Penal Law § 160.00 (see, Penal Law § 160.05). The core crime is elevated to robbery in the second degree when defendant is aided by another person or when the consequences of the forcible taking are aggravated because the robber or the accomplice displays a firearm or causes physical injury to a non-participant (see, Penal Law § 160.10). The most serious robbery offense, robbery in the first degree, is committed when, in the course of the forcible taking of property or immediate flight from the crime scene, the robber or another participant in the robbery "[c]auses serious physical injury to any person who is not a participant in the crime" (Penal Law § 160.15[1], or "[i]s armed with a deadly weapon" (Penal Law § 160.15[2], or "[u]ses or threatens the immediate use of a dangerous instrument" (Penal Law § 160.15[3], or displays some type of operable firearm (Penal Law § 160.15[4].

This gradation of robbery offenses embodies a legislative determination that the presence of one of the enumerated "aggravating factors" exacerbates the core criminal act and increases the danger of serious physical injury to--or, as in this case, causes the death of--a non-participant, thus warranting harsher punishment for the robber (see, People v. Lopez, 73 N.Y.2d, at 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328, supra; People v. Baskerville, 60 N.Y.2d, at 381, 469 N.Y.S.2d 646, 457 N.E.2d 752, supra; see also, 1 LaFave and Scott, Substantive Criminal Law § 1.8[b], at 69; § 3.8[a], at 343 [1986]. The enhanced severity of the crime is therefore reflected in the statutory designation of the degree of the offense (accord, People v. Maldonado, 86 N.Y.2d 631, 634-635, 635 N.Y.S.2d 155, 658 N.E.2d 1028).

II

Our law recognizes an attempt to commit a crime as a separate offense that occurs when a person "with the intent to commit a crime * * * engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00). A person who fails to perpetrate the object crime, despite committing some act in furtherance of that illegal end, is nevertheless guilty of an attempt because attempted criminal conduct is a danger to organized society and therefore independently culpable even though the intended result does not ensue (see, 2 LaFave and Scott, Substantive Criminal Law § 6.2, at 24; see also, People v. Bracey, 41 N.Y.2d 296, 299, 392 N.Y.S.2d 412, 360 N.E.2d 1094, rearg. denied 41 N.Y.2d 1010, 395 N.Y.S.2d 1027, 363 N.E.2d 1194; People v. Campbell, 72 N.Y.2d, at 605, 535 N.Y.S.2d 580, 532 N.E.2d 86, supra ). Of course, the criminal responsibility of a defendant who commits an attempt is less than but dependent upon the object crime that was intended (see, People v. Bracey, 41 N.Y.2d, at 299-300, 392 N.Y.S.2d 412, 360 N.E.2d 1094, supra ).

III

Defendant postulates that attempted robbery in the first degree is a nonexistent crime because robbery in the first degree has a "result-based" strict liability element--serious physical injury to a non-participant--that is inconsistent with the specific intent required to commit an attempted forcible taking. In short, defendant asserts, based on this Court's statement in Campbell, that "there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended" (People v. Campbell, 72 N.Y.2d, at 605, 535 N.Y.S.2d 580, 532 N.E.2d 86, supra ). Further, defendant argues that because the crime of robbery in the first degree does not require that the proscribed result--serious physical injury--be in furtherance of the underlying crime, as is the case in felony murder (Penal Law § 125.25[3] or assault in the first and second degrees (Penal Law § 120.10[4]; § 120.05[6], an inchoate robbery is not a proper predicate to hold a defendant strictly liable for the conduct of another defen...