People v. Pellot

May 30, 1991
Versions:173 A.D.2d 419
570 N.Y.S.2d 46
1991 N.Y. App. Div. LEXIS 7689

Judgment, Supreme Court, New York County (Richard Lowe III, J.), rendered February 7, 1990, convicting defendant of robbery in the first and second degrees and sentencing him to concurrent terms of imprisonment of from 4 to 12 and 3 to 9 years, unanimously affirmed.

The court’s supplemental instructions, charging the jury that the mental culpability test applies to each degree of each crime charged, and to the elements of each individual crime, satisfactorily conveyed to the jury the appropriate standard to be applied pursuant to Penal Law § 20.15.

The Trial Court committed no abuse of discretion in denying, without a hearing, defendant’s post-verdict motion, pursuant to CPL 330.30 (3), based upon newly discovered evidence. The evidence relied upon was co-defendant Rivera’s proposed testimony, disclosed to the parties for the first time during jury deliberations, to the effect that Rivera had stolen complainant’s property while defendant remained in the vehicle, unaware of what was going on. Defendant could have, but failed, to present this version of the facts to the jury. As such, defendant did not fulfill the requirements set forth in People v Salemi (309 NY 208, cert denied 350 US 950).

We conclude defendant has failed to demonstrate that the sentencing court abused its discretion. We have considered the remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Milonas, Wallach, Ross and Kassal, JJ.