People v. Bayard

Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered December 16, 2004, convicting defendant, after a jury trial, of robbery in the second degree and grand larceny in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 7 years and 2 to 4 years, respectively, modified, on the law, to remand the matter for a new trial on the first count of the indictment, and otherwise affirmed. The trial testimony established that defendant and the victim, who suffered from a mental disability, knew each other growing [329] up. On June 1, 2004, they ran into each other in Sheepshead Bay. Defendant accompanied the victim as he withdrew $587 from the bank, purchased a cell phone for $250, then dropped his bicycle off at a repair shop on West 96th Street in Manhattan. After the victim purchased the cell phone, defendant requested a loan of $100, which the victim refused twice. Upon leaving the repair shop, located in the neighborhood where they grew up, they ran into defendant’s brother, whom the victim recognized, and two other young men at 93rd Street and Amsterdam Avenue. Then, they walked to 120 West 94th Street where defendant said they would visit another friend. They entered the elevator there and someone pressed the button for the second floor. Someone else said “wrong floor” and pressed the ninth floor button. When the victim tried to exit at the ninth floor, defendant placed him in a chokehold. Although he could not see defendant’s face, his assailant was wearing a gray sweatshirt and only defendant was wearing such a shirt. The victim lost consciousness momentarily, but upon recovering, was alone on the elevator and heard people running down the stairwell. He immediately discovered that his cell phone and remaining cash were missing. He exited the building and reported the robbery to officers in a nearby patrol car, describing defendant and the other perpetrators. Approximately an hour later, while canvassing the neighborhood with two detectives, the victim spotted defendant’s brother and the other two young men; the detectives gave chase and captured the two young men, whom the victim identified. Defendant’s brother escaped. On June 3, 2004, defendant was arrested. The arresting detective testified that he and his partner knocked on the door of defendant’s residence and when a woman answered, he identified himself as an officer and asked for defendant in regard to an incident in the 24th precinct (the West 96th Street area). The woman brought defendant to the door, and when the detective asked him to step outside into the hallway, he did and was arrested. The detectives did not have a warrant. The victim identified him outside the building. Upon cross-examination by the People, the detective testified that after defendant’s arrest, an arrest photo was taken and an arrest number assigned. Other testimony established that the photo shown at trial was indeed the arrest photo and that it matched defendant’s arrest number. The photo, wherein defendant wore a gray sweatshirt, was introduced only to show his face, not to show what he was wearing. The prosecution’s theory of the case was that defendant com [330] mitted robbery in the second degree aided by another person actually present (Penal Law § 160.10 [1]). However, arguing that there was no evidence that anyone on the elevator other than defendant took anything or committed any other act in furtherance of the crime, defendant requested that robbery in the third degree (Penal Law § 160.05) be submitted to the jury as a lesser included offense. The prosecution concurred in this request, agreeing that a reasonable view of the evidence would allow that defendant alone committed the robbery and that the others may not have shared his intent. The court declined to give this instruction, stating that such conclusion would be speculative. The trial court committed reversible error in refusing to submit the lesser included crime to the jury, since the requirements for such submission were met (see People v Maharaj, 89 NY2d 997, 999 [1997]; People v Glover, 57 NY2d 61, 63-64 [1982]). The first requirement, that it is impossible to commit the crime of robbery in the second degree without simultaneously committing that of robbery in the third degree, is undisputed here. The second requirement, that a reasonable view of the evidence establishes that the defendant was guilty of the lesser, but not the greater, offense is also established. The only evidence is the victim’s testimony that he was choked from behind, that he passed out, that he awoke to find his property missing, and that defendant was the sole person (of whom he was aware) who was involved in any way in any of these acts. None of the evidence reasonably eliminates the possibility that defendant acted alone. The issue of flight from the scene was one for the jury to consider relative to the codefendants’ possible participation in the robbery, but of which the jury was effectively deprived by the court’s ruling. However, since the erroneous charge only related to the second-degree robbery count in the indictment, defendant’s conviction of grand larceny in the fourth degree under the second count of the indictment should be affirmed (see People v Douglas, 29 AD3d 47 [2006], lv denied 6 NY3d 847 [2006]). Defendant’s Payton claim is without merit and his remaining contentions are academic. Concur — Andrias, J.P., Saxe, Williams and Sweeny, JJ.