People v. Timlin

OPINION OF THE COURT Main, J. Defendant was indicted for robbery in the second degree and, after a jury trial, was convicted as charged and sentenced to an indeterminate term of imprisonment of 3 to 9 years. Viewing the evidence in the light most favorable to the People because of the conviction (see People v Kennedy, 47 NY2d 196, 203), the record reveals that on December 18,1981, one Vincent Caruso entered the Giant Food Store on Main Street in the City of Binghamton and displayed a note which threatened that he had a gun and that he would kill unless he was given money. It further indicates that, after Caruso was given about $2,500, he left the store and entered the passenger side of a car, which [297] was waiting for him in an alley a short distance away and which defendant was driving when stopped a few minutes later by police. On this appeal, defendant contends that the evidence at trial was. insufficient to establish his guilt of robbery in the second degree under subdivision 1 of section 160.10 of the Penal Law, which provides that “[a] person is guilty of robbery in the second degree when he forcibly steals property and when * * * [h]e is aided by another person actually present”. Specifically, defendant argues that no evidence was presented to show that he was “actually present” at the time and place of the robbery, i.e., inside the Giant Food Store. We are not persuaded by defendant’s argument. The facts, as found by the jury in convicting defendant, establish that defendant and Caruso acted as a team in the robbery of the Giant Food Store — defendant by driving the getaway car after keeping it ready and waiting and Caruso by entering the store and securing the money. Thus, the jury concluded that defendant, with the required mental culpability, intentionally aided Caruso in forcibly stealing money from the Giant Food Store (see Penal Law, §§ 20.00, 160.10). Furthermore, because it was was undisputed that Caruso was “actually present” in the store, thereby aiding defendant in the commission of the crime, defendant was accountable for the aggravating circumstance delineated in subdivision 1 of section 160.10 of the Penal Law. This latter conclusion is consistent with both section 20.15 of the Penal Law, which provides that a person who is liable for criminal conduct under section 20.00 of the Penal Law shall be guilty of the degree of the crime which is consistent with, inter alia, his own accountability for an aggravating factor or circumstance, and with the modern trend of law, which requires an aiding and abetting defendant to rise or fall on the evidence as against him and not on the case as against the principal (see, generally, Acquittal of Principal, or His Conviction of Lesser Degree of Offense, as Affecting Prosecution of Accessory, or Aider and Abettor, Ann., 9 ALR4th 972). In this case, regardless of the crime for which Caruso might have been charged, defendant was charged with robbery in the second degree under subdivision 1 of section [298] 160.10 of the Penal Law. Prior appellate decisions establish that for conviction under this subdivision there must be “(1) an ‘accomplice’ (2) who is ‘actually present’ and (3) ‘aiding’ the defendant” (People v Williams, 47 AD2d 262, 265; see, also, People v Acevedo, 40 NY2d 701, 706). As noted above, the jury clearly found that Caruso was an accomplice who was actually present and aiding defendant. Viewed in this way, the aggravating factor delineated in subdivision 1 of section 160.10 of the Penal Law was satisfied. Indeed, the Commission Staff Notes on the Proposed New York Penal Law make clear that a situation involving a group of bandits who commit a robbery using a car was meant to be included under robbery in the second degree by reason of the accomplice factor (see Commission Staff Notes for proposed art 165 [renum art 160], reprinted in 1982-1983 Gilbert Criminal Law and Procedure, p 2A-74). The fact that the group in this case consisted of only two does not require a different result in light of the Commission Staff’s distinction between the use of a car in a solo robbery and such use in a group setting (ibid.); a robbery involving two perpetrators acting as a team is more akin to a group robbery than a solo robbery and should be subject to a more severe penalty. Thus, the situation presented in the instant case falls within the accomplice factor of subdivision 1 of section 160.10 of the Penal Law and defendant’s conviction, because Caruso was “another person actually present”, was supported in fact and in law.* We also find without merit defendant’s claim that his sentence requires modification. The sentence imposed is within the statutory limits and is less than the maximum. There is no indication that County Court abused its discretion in imposing the sentence and, consequently, there is no basis for modification (see, e.g., People v Du Bray, 76 AD2d 976, 977). The judgment should be affirmed. Footnotes [*] We note that People v Hampton (92 AD2d 490), relied on by the dissent, is distinguishable in that interpretation of and reliance on section 20.00 of the Penal Law was not necessary to the decision therein.