Articles Posted in Robbery

In this criminal case, defendant appealed from a judgment of the Supreme Court, Kings County, convicting him of robbery in the third degree and grand larceny in the third degree (two counts), upon a jury verdict, and imposing sentence.

A Kings County Grand larceny lawyer said that the Court agrees with the defendant’s contention that the value of the stolen jewelry was not established in accordance with Penal Law § 155.20(1), which requires proof of “the market value of the property at the time and place of the crimes, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime”. Accordingly, his convictions of grand larceny in the third degree cannot stand. However, the evidence presented did establish the crime of petit larceny, which requires no proof of value. Accordingly, the judgment is modified to reduce his convictions of grand larceny to convictions of petit larceny. There is no need to remit the matter for resentencing as the defendant has already served the maximum period to which he could have been sentenced on the convictions of petit larceny.

The Court finds unpersuasive the defendant’s contention that reversal is warranted because the trial court failed to timely notify counsel of its intention to charge robbery in the third degree as a lesser included offense under the count of the indictment charging him with robbery in the first degree. The record reveals that, following summations and prior to the charge, the court made the following statement: “I’ve already informed counsel that I intend to charge robbery three as a lesser included (sic) charge of a robbery one charge. That will be in the alternative. But I wanted that to be on the record”.

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Judgment by the Bronx County Supreme Court convicting the defendant after trial to a jury of robbery in the first and second degrees, grand larceny in the third degree and possession of a weapon as a misdemeanor, and sentencing him to concurrent indeterminate terms of 12 years on each of the robbery counts, four years on the grand larceny count and a conditional discharge on the weapons count, unanimously modified on the law, to the extent of reversing the conviction on the grand larceny count and dismissing that count of the indictment and, as so modified, the judgment is affirmed.

The defendant could not have committed robbery without having also committed larceny; the larceny offense was, therefore, an inclusory concurrent lesser count included within the greater crime of robbery.

Prior to trial, a hearing was held pursuant to Article 670 of the CPL to determine whether the victim of the criminal act was unable to testify at the trial by reason of illness. Under circumstances prescribed in this article, testimony given by a witness at a trial of an accusatory instrument, or a hearing upon a felony complaint, or an examination of such witness conditionally, may, where otherwise admissible, be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found, or is outside the state or in federal custody and cannot with due diligence be brought before the court. Upon being received into evidence, such testimony may be read and any videotape or photographic recording thereof played. Where any recording is received into evidence, the stenographic transcript of that examination shall also be received.

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Defendant was indicted on twelve charges, including one count of Robbery in the First Degree, PL 160.15(3); two counts of Robbery in the Second Degree, PL 160.15(1) and (2)(a); one count of Robbery in the Third Degree, PL 160.05; one count of Grand larceny in the Fourth Degree, PL 155.30(5); one count of Assault in the First Degree, PL 120.10(1); and three counts of Assault in the Second Degree, PL 120.05(1) and (2) and (6), as well as several misdemeanors, in connection with an incident, on or about May 1, 2008, in which Defendant is charged with having assaulted a livery cab driver in his vehicle, having wielded a knife, and having robbed the cabdriver.

A Bronx County Criminal Lawyer said that while the jury selection process for Defendant’s trial was underway, Defendant pleaded guilty, pursuant to a negotiated plea agreement, to one count of Robbery in the First Degree, a class B felony, to satisfy all of the charges pending against him. The Court informed Defendant that, if he adhered to certain conditions that were articulated by the Court, one of which required the Defendant to cooperate with the Department of Probation, the Court would sentence Defendant to a determinate sentence of eleven years in state prison, and five years of post-release supervision, a permanent order of protection and certain mandatory surcharges. The Court informed Defendant that “cooperate” in that context meant that Defendant could not swear to certain facts under oath in court and then deny those same facts to Probation during his pre-sentence interview. This is not burglary.

The Court also informed Defendant that, if he did not comply with the articulated conditions, the Court would then sentence Defendant to 25 years. Defendant acknowledged on the record that he understood those conditions.

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It was in the afternoon of July 17, 1973, the female complainant in this case entered the elevator at the first floor of her apartment building. She had a cast on her broken foot and was using crutches. The 30-year old male defendant was already on the elevator and, although the complainant pressed the button for an upper floor, on which her apartment was located, the elevator descended to the basement. The doors opened and the defendant turned to face the complainant with a small knife in his hand. He told her, by the use of an indecent phrase, that he wanted her to submit to sex with him. She refused and he then demanded that she give him money and she said she did not have any. She retained her composure and protected herself from the defendant by her very resolve not to comply with anything he asked. While this was happening the elevator door closed and the elevator ascended to the first floor, at which time the defendant ran away.

He was subsequently arrested, indicted by the Grand Jury and tried. On October 26, 1973, he was convicted by the jury of the crimes of Attempted Robbery in the First Degree, Attempted Grand Larceny in the Third Degree and Possession of a Weapon as a Misdemeanor, and was sentenced to a minimum of four years to a maximum of twelve on the attempted robbery, first degree count. Defendant later moved for the dismissal of the criminal charges and the striking of the imposition of the minimum 4 year term of imprisonment on the Attempted Robbery count. He claims further that the Trial Court made certain inappropriate remarks showing its hostility against him.

Upon consideration of the facts and circumstances, the Supreme Court ruled that it was an abuse of discretion to impose a minimum 4 year term of imprisonment on the Attempted Robbery charge. The court noted that while the felony was serious, nevertheless, imposition of the 12 year maximum term gives adequate scope of punishment.

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Defendant was convicted after a jury trial of the crimes of Robbery in the First Degree, Grand larceny in the Third Degree and Possession of a Dangerous Weapon.

A New York Grand larceny lawyer said that the defendant was indicted for various crimes growing out of an incident which occurred in March 1971. According to the complainant, two men assaulted him and then proceeded to take his watch and $89. The criminal defendant admitted meeting the complainant at the time and approximate location alleged by him, but related a far different version of the events. The defendant maintained that he obtained $25 from the complainant on the false representation that he had a television set which he would sell to the complainant.

At the conclusion of the testimony, defense counsel requested that the Court charge the jury with respect to the crime of petit larceny, urging that it was a lesser-included crime of count two of the indictment wherein it was alleged that the defendant had committed the crime of grand larceny in the third degree by stealing ‘from the person certain property of an aggregate value not in excess of $250’ Despite that request, counsel, nevertheless, took the position that defendant could not be convicted of petit larceny by false pretenses–the crime which defendant, in effect, admitted–since that crime was not specifically alleged in the indictment. The District Attorney, however, correctly pointed out that the Penal Law does not require that the indictment contained specific allegations concerning the manner in which the larceny was committed, and apparently took the position that the crime of petit larceny by false pretenses could be submitted to the jury. At that point the Court stated that it would charge ‘the additional lesser included count’.

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The Appellate Division denied the writ, stating that the defendant failed to establish that he was denied the effective assistance of appellate counsel. The defendant thereafter applied for a writ of error coram nobis, alleging that he had been deprived counsel on the State’s appeal.

Although a writ of error coram nobis generally raises the claim that the defendant received ineffective assistance of appellate counsel, the writ is also a proper vehicle for addressing the complete deprivation of appellate counsel that occurred here.  Accordingly, the Appellate Division should have granted the defendant’s application for a writ of error coram nobis.  Because the defendant’s trial counsel failed to comply with the terms of NYCRR (New York Codes Rules and Regulations), the defendant was deprived of appellate counsel to which he was entitled.

The Appellate Division, apparently unaware that the defendant had been represented by assigned trial counsel, determined the Sate’s appeal, noting no appearances by the defendant. Although the assigned trial counsel informed the defendant of the State’s appeal, the defendant’s counsel failed to represent the defendant on that appeal. If a defendant was represented by assigned counsel at the trial court, such assignment shall remain in effect and counsel shall continue to represent the defendant as the respondent on the appeal until entry of the order determining the appeal and until counsel shall have performed any additional applicable duties imposed upon him by these rules, or until counsel shall have been otherwise relieved of his assignment. Prostitution was not involved and prostitution was not charged.

Defendant was indicted for the crimes of robbery in the second degree, grand larceny in the second degree, grand larceny in the third degree and burglary in the third degree. In substance it was alleged that he and a male confederate (not apprehended) accosted the complaining witness on a Brooklyn street. Between them the two men perpetrated the confidence game of ‘finding’ money in the street and offering her a share of it if she would put up some money of her own as evidence of good faith.

A Kings County Criminal lawyer said that the complainant testified at the trial that defendant told her she would have to give them (the two men) $2,500 ‘to make us know that you won’t tell anybody’ that they had found the money and ‘for your own safety.’ In due course she was persuaded to allow them to accompany her to her apartment. There she obtained her savings account passbook. With the two men still accompanying her, she proceeded to her bank, from which she withdrew $2,500 and she handed it over to the two men in a car parked nearby. She testified that she refused to accept a share of the ‘found money’ which, of course, was nonexistent. She expressed fear for her safety at the hands of the two men had she not complied with their demand.

At the conclusion of the People’s case, and on motion of the defense attorney, the trial court dismissed the two counts of grand larceny and the one count of burglary. In dismissing the larceny counts, the court commented that it was doing so only ‘because of failure of pleading’ and, further, the court remarked that ‘the pleading should have been that grand larceny was committed by extortion.

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In November 1963, the defendant having theretofore pleaded guilty to the crime of attempted robbery in the third degree, unarmed, was sentenced to State Prison for a term of not less than 2 1/2 to 5 years. The defendant filed a notice of appeal from the judgment of conviction.

Thereafter, he moved in the Appellate Division to reverse the criminal judgment of conviction or, in the alternative, to remand the action to the trial court for a hearing to determine whether he was denied due process and his right to a speedy trial. By order, the motion, upon the consent of the district attorney, was granted ‘to the extent of remanding the action to the trial court for a hearing and determination on the issue of appellant’s contention that he was denied due process and his right to a speedy trial.’ In all other respects the motion was denied.

A Kings County Grand Larceny lawyer said that a hearing was held at which it was developed that indictment was filed charging the defendant and two co-defendants with robbery in the first degree, assault in the second degree and grand larceny in the first degree. Thereafter, he was arraigned and pleaded not guilty. The defendant moved for an inspection of the grand jury minutes which was denied by an order. The case was marked off the calendar because of another motion which was then pending and was was adjourned later at the request of the defendant. The case was marked ready and passed subject to the completion of the trial of the defendant and the same co-defendants, upon a robbery indictment in the Supreme Court, Queens County.

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The Facts of the Case:

A building containing offices and retail establishments was broken into and burglarized. Moments after the silent alarm system went off, the appellants, along with a third person, were found inside including various tools that were apparently used in the burglary. Consequently, appellants were charged and convicted of breaking and entering with intent to commit a felony, viz: grand larceny, petit larceny and possession of burglary tools. They were each sentenced to fifteen years for the breaking and entering conviction, 60 days in the county jail for the petit larceny, and five years for the possession of burglary tools, the latter to run consecutive to the former concurrent sentences.

The appellants now ask the court for a reversal of their convictions and sentences and argues that the evidence presented was insufficient to support the conviction of breaking and entering with intent to commit grand larceny; that the trial court erred in disallowing the testimony of an alleged material witness; and that the trial court erred in imposing three separate sentences for the three offenses inasmuch as the petit larceny and possession of burglary tools were but facets or phases of the breaking and entering with intent to commit grand larceny.

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