72 A.D.2d 691 | N.Y. App. Div. | 1979
Dissenting Opinion
dissents in part in a memorandum as follows: The facts of this case present a disturbing issue that in my view is not adequately addressed in the decision or opinion of the court. The comment in the court’s opinion that the codefendant "was apparently more culpable than defendant” does not begin to describe the reality disclosed by the testimony of the victim (Silvester Woney) in this trial. Four persons participated in the robbery, only two of whom were apprehended, Earl Lindsey and the defendant herein David Blum. Lindsey was the only one of the four to display and threaten Woney with a knife. The encounter opened with Woney being
Lead Opinion
Judgment, Supreme Court, Bronx County, rendered December 13, 1977, convicting defendant, on jury verdict, of robbery in the second degree (Penal Law, § 160.10), and sentencing him to an indeterminate term of imprisonment of 5 to 15 years, is modified, as a matter of discretion and in the interest of justice, to the extent that the sentence is reduced to an indeterminate term of imprisonment of not less than 3 Vs and not more than 10 years, and the court imposes that sentence on the defendant. The Trial Justice charged the jury, without objection or exception, that "a person is presumed to intend that which he actually does.” In the light of Sandstrom v Montana (442 US 510), we deem it advisable to caution the Trial Justices not to use the language of presumption (as distinct from permissible but not necessary inferences) in connection with charges of intent in criminal cases. Depending on the circumstances, the jury may but are not required to draw the inference that the defendant intended the natural and probable consequences of his acts. The defendant’s intent is to be determined in the light of all the evidence; and the requisite culpable intent must be proved beyond a reasonable doubt. (Cf. People v Dellipizzi, 61 AD2d 961.) In the present case we do not think the charge calls for reversal because: (a) there was no objection; (b) there is no likelihood that the jury was misled; and (c) the Judge did not charge any presumption as to intending consequences, only that the defendant intended what he actually did, i.e., essentially that defendant’s acts were voluntary, which no one disputed. We see no error warranting reversal or modification with respect to the conviction. However, with respect to the sentence, although the defendant has a long record of criminal but relatively minor offenses, we think the sentence imposed was excessive for these reasons: His codefendant, who was apparently more culpable than defendant, pleaded guilty to robbery in the first degree and received an indeterminate term of imprisonment with a maximum of seven years and no minimum to cover this and another pending robbery charge. This defendant chose to stand trial and was convicted on trial of robbery in the second degree. It is not surprising that the sentence imposed on one guilty participant after a presumably negotiated plea of guilty should turn out to be less than that imposed on another participant who has been convicted after trial. Were this all, we would not interfere with the sentence. However, although defendant’s participation in the robbery is clear, it also appears that defendant repeatedly urged his codefendant not to hurt the victim. In these circumstances, we think the defendant should not have been sentenced to the absolute maximum that the law permits for the crime of which the jury convicted him, and we therefore reduce the sentence to 3 Vs to 10 years. Concur&emdash; Bloom, Lane and Silverman, JJ.