People v. Letterlough

—Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Thorp, J.), rendered January 17, 1992, convicting him of robbery in the second degree and robbery in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is modified, on the facts, by vacating the conviction for robbery in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. The defendant and an accomplice were observed stealing merchandise from a J.C. Penney store. After leaving the store, they were met outside by a third accomplice, who was driving a Volkswagen automobile. The three accomplices were con [590] fronted by security officers as they were preparing to make their escape. During the course of this encounter, all three accomplices exited from the vehicle; however, the defendant eventually re-entered the vehicle and drove off alone, striking one of the security officers. The defendant drove the Volkswagen to a distance of approximately 200 feet, at which point he stopped and was rejoined by his cohorts. In light of the facts of this case, we are unanimous in agreeing that what began as a shoplifting became a robbery when, employing the Volkswagen as a weapon, the defendant used actual force against one of the security officers in order to prevent the recovery of the stolen property immediately after it had been taken (see, Penal Law § 160.00 [1]; People v Santiago, 62 AD2d 572, affd 48 NY2d 1023). We disagree with our dissenting colleague only with respect to whether there was legally and factually sufficient evidence to support the jury verdict finding that this force was applied with the aid and in the actual presence of the defendant’s two accomplices, so as to elevate the crime to robbery in the second degree (see, Penal Law § 160.10 [1]). As a matter of fact, if not as a matter of law, we cannot see how the defendant’s two accomplices, who were standing to the side at the time that the defendant drove the Volkswagen into the security officer, were in any position "to render him aid during the actual commission of the robbery” (People v Hedgeman, 70 NY2d 533, 543). It is proof of the accomplices’ actual presence and ability to render aid at the time of the application or threatened application of force that elevates the crime to robbery in the second degree (see, People v Hedge-man, supra; see also, People v Wright, 189 AD2d 612; People v Lopez, 156 AD2d 386; People v Wearen, 155 AD2d 889; People v Williams, 147 AD2d 515; cf., People v Dennis, 146 AD2d 708, affd 75 NY2d 821). We therefore vacate the defendant’s conviction of robbery in the second degree. We have examined the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., O’Brien and Altman, JJ., concur.