Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered September 12, 2006, convicting him of robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the fourth degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., HOWARD MILLER, RUTH C. BALKIN, RANDALL T. ENG and ARIEL E. BELEN, JJ.
ORDERED that the judgment is modified, on the law, by vacating the defendant's conviction of robbery in the first degree under count one of the indictment and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for a new trial on the charge of robbery in the first degree under count one of the indictment.
With respect to count one of the indictment, which charged robbery in the first degree in violation of Penal Law § 160.15(4), the trial court erred in refusing to charge the affirmative defense under that statute (see Penal Law § 160.15). Although the complainant testified that he heard a "click" and felt a cold, hard object against his neck, which he believed to be a gun, he did not testify that he saw a gun. Moreover, the defendant's accomplices testified that a knife had been used in the robbery. Based upon this evidence, the jury could have found, by a preponderance of the evidence, that the object the complainant felt in the back of his neck was not a loaded firearm and thus, that the elements of the affirmative defense were satisfied (see People v Gilliard, 72 NY2d 877, 878; People v Lockwood, 52 NY2d 790, 793; People v Deboue, 234 AD2d 558, 559).
The defendant's contention that the accomplice testimony adduced at trial was insufficiently corroborated by independent evidence is without merit (see CPL 60.22; People v Breland, 83 NY2d 286; People v Goodson, 35 AD3d 760, 761; People v Lawrence, 17 AD3d 697, 698). The Criminal Procedure Law requires only that the corroborative evidence "tend[s] to connect" the defendant with the commission of the relevant offense (CPL 60.22). Under that standard, "[a]ll that is necessary is to connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth" (People v Daniels, 37 NY2d 624, 630). That standard was met in this case. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant's contention that the trial court failed to sufficiently inquire into his request for substitution of counsel is also without merit (see People v Linares, 2 NY3d 507, 510; People v Medina, 44 NY2d 199, 207; People v Banister, 15 AD3d 497, 497).
The sentence imposed upon the defendant's conviction of count two of the indictment was not excessive (see People v Suitte, 90 AD2d 80). PRUDENTI, P.J., MILLER, and BALKIN, JJ., concur. ENG, J., dissents and votes to reverse the judgment of conviction and dismiss the indictment, with the following memorandum in which Belen, J. concurs:
The defendant was convicted of robbery in the first degree, and other offenses, for his role in the forcible theft of the complainant's wallet. During the course of the commission of the crime, the complainant never saw the faces of the two men who approached him from the rear and robbed him, or the knife which the defendant allegedly pressed against the back of his neck. Indeed, it was the complainant's testimony that he believed that a gun was the weapon used. Due to the inability of the complainant to identify the men who robbed him, the defendant's conviction rested almost entirely upon the testimony of two female accomplices who were involved in the robbery scheme. For the reasons which follow, I disagree with my colleagues' conclusion that the prosecution presented sufficient corroborative evidence to establish the defendant's guilt beyond a reasonable doubt. Accordingly, I respectfully dissent, and vote to reverse the judgment of conviction and dismiss the indictment.
The evidence presented by the prosecution reveals that on the afternoon of December 17, 2005, the complainant went to the Venture Inn, a small bar located in Port Jervis, New York. At the Venture Inn, the complainant met two young women, Verna Russman and Brandi McMillan. Russman was involved in a relationship with the defendant, James McRae, and McMillan was involved in a relationship with Samuel Spradley. Although the defendant and Spradley were close friends, the two women had known each other for only about two weeks. Russman and McMillan had gone to the Venture Inn together on December 17th, and were at the bar for several hours. The defendant and Spradley also were at the Venture Inn at various times that day, but neither was continually present.
During the course of the afternoon, the complainant engaged in conversation with Russman and McMillan, and purchased drinks for them. According to Russman, when the complainant first offered to buy her a drink, she refused, telling him that she "saw he had only $2.00." However, the complainant allegedly responded by asking Russman "how high can you count?", and by showing her his wallet, which was full of $100 bills. McMillan also saw the complainant show Russman the cash in his wallet. At some point after seeing the money in the complainant's wallet, McMillan had a conversation with Spradley, who then left the bar. Shortly thereafter, Russman, who had agreed to accompany the complainant to a motel, asked McMillan if she wanted to go with them. However, McMillan stated that she was going to go with the defendant and Spradley. Inside the defendant's car, a dark blue Mercury Grand Marquis, McMillan, the defendant, and Spradley discussed a plan to follow the complainant and Russman, and rob the complainant.
The complainant then drove Russman to the Comfort Inn, where they rented a room. When the defendant, Spradley, and McMillan arrived at the Comfort Inn, McMillan went inside to find out the number of the room the complainant and Russman had rented. Inside the motel, McMillan located Russman and the complainant standing near the bar. Russman gave McMillan the couple's room number, but indicated that they were going to go to another bar because the motel bar was closed. McMillan then returned to the defendant's car, and Russman went outside to the parking lot to talk to the defendant and Spradley. Russman returned to the motel, but shortly thereafter, she accompanied the complainant to his truck, and drove with him to the Backtrack Inn. On the way to the Backtrack Inn, the complainant noticed that another vehicle was following his truck, and asked Russman if she knew who was following them. Russman replied, "don't worry about it." When the defendant, Spradley, and McMillan arrived at the Backtrack Inn, they waited in the parking lot while the complainant and Russman went inside and had drinks. The planned robbery took place after Russman and the complainant had left the Backtrack Inn, and were about to enter the complainant's truck. Russman, who testified in exchange for a more favorable plea agreement, claimed that ...