The People of the State of New York, Respondent, v William T. Curry, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
March 24, 2011
924 NYS2d 217
Appeals from two judgments of the County Court of Broome County (Smith, J.), rendered September 29, 2009.
Defendant and two codefendants encountered the victim on the street. After exchanging gang slang with one of the codefendants, the victim pulled a gun. When a police car drove nearby, the victim рut the gun in his pocket. Defendant and the codefendants then beat the victim unconscious and took his jacket, gun and cell phone. As a result, a jury convicted defendant of robbery in the second degree (two counts), criminal possession of a weapon in the second degree, assault in the third
Based on an unrelated incident, defendant pleaded guilty to attempted robbery in the second degree in exchange for a sentence of three years in prison, followed by three years of postrelease supervision, to run concurrently with the agreed-upon sentences stemming from his convictions after trial. That agreement included concurrent terms of seven years in prison, followed by five years of postrelease supervision, for each of the robbery and weapon possession counts, and one-year sentences for the assault and criminal possession of stolen property counts. County Court imposed the agreed-upon sentences for all of defendant’s convictions. He now appeals.
The robbery convictions were supported by legally sufficient evidence and not against the weight of the evidence. Defendant only challenges the proof regarding larcenous intent, namely that he wrongfully took property with the intent tо deprive another of that property (see
The criminal possession of a weapon conviction was supported by legally sufficient evidence and not against the weight of the
Defendant’s grand jury testimony and the victim’s testimony proved that a police car passed nearby after the victim pulled a gun, but defendant made no effort to flag down the offiсer. After taking the gun from the victim, defendant and the codefendants did not surrender it to police, nor did they show any intention to do so. Instead, while inspecting the weapon, one of the codefendants accidentally shot defendant in the arm. Rather than call an ambulance or go to the hospital, defendant spent the night drinking before someone convinced him to go to the hospital the next day. Defendant then lied to police about how he was shot, who shot him and where the gun was located. Despite defendant’s grand jury testimony that he only intended to get the gun away from the victim to prevent the victim from shooting at defendant and his codefendants, the jury could have determined from their actions that, upon taking the gun, thеy sought to hide it and keep it rather than holding it temporarily, refuting the claim of innocent possession (see People v Banks, 76 NY2d at 801; People v Snyder, 73 NY2d 900, 901-902 [1989]). Thus, the weapon possession charge was supported by legally suffiсient evidence and not against the weight of the evidence. Because defendant’s behavior was inconsistent with innocent temporary possession of the gun, County Court did err in denying his request for a jury instruction on that defense (see People v Banks, 76 NY2d at 800-801; People v Snyder, 73 NY2d at 901-902).
County Court did err, however, in denying defendant’s request for a justification charge on the assault count. A trial court must consider the evidence in a light most favorable to the defendant and grant the request to charge justification if any reasonable view of the evidence might lead the jury to decide that the defendant’s actions were justified (see People v Padgett, 60 NY2d 142, 144-145 [1983]). A defendant is justified in using
In his grand jury testimony, defendant stated that even when the victim put the gun in his pocket he was holding it in a threatening manner, defendant was afraid that the victim was going to shoot at defendant and his codefendants, and he and his codefendants jumped the victim, subdued him and took the gun to prevent him from shooting them. This testimony indicated that defendant believed that he and his codefendants were subject to the imminent use of force by the victim, which would permit him to use physical force to defend himself and his friends. Although there was strong evidence to negate this testimony, when viewing the evidence in defendant’s favor, a jury could have determined that defendant was justified in using force against the victim (seе People v Padgett, 60 NY2d at 144-145). Therefore, defendant was entitled to have County Court deliver a justification defense charge to the jury. Refusal to deliver the requested charge was reversible error (seе People v McManus, 67 NY2d 541, 549 [1986]; People v Watts, 57 NY2d 299, 301 [1982]). As that charge was only requested on the assault count, we reverse and remit for further proceedings related to defendant’s conviction on that count only.
Defendant correctly contends that he may withdraw his plea on the second indictment if it was induced by a promise that the sentence would run concurrently with the sentence in another case аnd the conviction in that other case is overturned, thereby depriving him of the benefit of his bargain (see People v Pichardo, 1 NY3d 126, 129 [2003]). Our reversal of the assault count does not create such a scenario. The aggregate maximum sentence flowing from his convictions after trial is unaffected by our reversal of the assault count, which resulted in a concurrent one-year sentence. Because defendant still received the
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgment rendered September 29, 2009 after trial is modified, on the law, by reversing defendant’s conviction of assault in thе third degree under count five of the indictment and vacating the sentence imposed thereon; matter remitted to the County Court of Broome County for a new trial on said count; and, as so modified, affirmed. Ordered that the judgment rendered September 29, 2009 upon the plea of guilty is affirmed.