People v. Hedgeman

Appeal by the defendant from two judgments of the Supreme Court, Queens County (Rotker, J.), both rendered August 2, 1982, convicting him of robbery in the second degree under indictment No. 1952/81, upon a jury verdict, and convicting him of robbery in the third degree, under indictment No. 2028/81, upon his plea of guilty, and imposing sentence. Judgments affirmed. The defendant was indicted under indictment No. 1952/81 for robbery in the first and second degrees, for a July 3, 1981 robbery which occurred at a branch of the Manufacturer’s Hanover Bank at the intersection of Jamaica Avenue and Hollis Court Boulevard in Queens. An employee testified that the defendant left the bank premises after taking approximately $200 and stepped into the passenger’s side of a poorly painted, light blue automobile which had either a black vinyl or convertible top, a plastic rear window, and a bent license plate. The automobile was then driven off by an accomplice in the direction of Hillside Avenue. On July 14, 1981, the automobile and its passenger were seen at the Republic National Bank at Hillside and Braddock Avenues in Queens by a bank employee who had apparently received notification of the earlier robbery. Police officers were summoned to the Republic National Bank and the defendant and the automobile’s driver were apprehended after they fled in the automobile. Later that day, the defendant admitted his involvement in the July 3, 1981 robbery, and implicated the driver as his accomplice. At the conclusion of the People’s case, the court granted the defendant’s motion to dismiss the charge of robbery in the first degree, but submitted the charge of robbery in the second degree to the jury under the theory that the defendant forcibly stole property "aided by another person actually present” (Penal Law § 160.10 [1]). The defendant contends that he was not properly convicted of robbery in the second degree because his accomplice was not "actually present” within the bank premises when the robbery occurred. He contends that his accomplice’s "constructive” presence on the street outside was insufficient to meet the statutory requirement that he be aided by another person "actually present”. We decline to read the statute so narrowly. Historically, a distinction between actual and constructive presence was recognized (see, McCarney v People, 83 NY 408, 413). But more recent history suggests an elimination of such a distinction in [447] Penal Law § 160.10 (1). The Commission Staff Notes on the Proposed Penal Law indicate that a robbery involving use of an automobile by two or more persons was intended to be included under robbery in the second degree by virtue of the presence of an accomplice (Commission Staff Notes for proposed Penal Law art 165 [renum 160], reprinted in 1982-1983 Gilbert Criminal Law and Procedure, at 2A-74). Since the defendant’s accomplice was shown to be parked approximately 15 feet from the bank at the time of the robbery, we conclude that he could be considered to be a person "actually present” to aid the defendant (see, People v Timlin, 99 AD2d 296, 298-299, lv denied 62 NY2d 992). Under the circumstances, the court’s instructions to the jury which defined the elements of robbery in the second degree and explained the nature of accomplice liability were adequate. The defendant’s contention that his postarrest statements were entitled to suppression as the product of an illegal arrest is without merit. The police had probable cause to make the arrest for the July 3, 1981 robbery based upon the unique appearance of the getaway car, and its occupants’ flight from the authorities at the time of the arrest (People v Chavis, 99 AD2d 584). We have considered the appellant’s other contentions and find them to be without merit. Mangano, J. P., Rubin and Lawrence, JJ., concur.