PEOPLE v. GAUSE (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Steuben County Court for resentencing.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [1]), assault in the first degree (§ 120.10 [1]), and conspiracy in the fourth degree (§ 105.10 [1]). Defendant contends that the evidence is legally insufficient because the testimony of her boyfriend and the victim was incredible, she was merely present when the crimes were committed and did not intend to assault or rob the victim, her boyfriend's testimony was not adequately corroborated, and she renounced her participation in the conspiracy. Defendant's contention is not preserved for our review inasmuch as her motion for a trial order of dismissal was not “ ‘specifically directed’ at [those] alleged error[s]” (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995]; see People v. Johnson, 225 A.D.3d 1115, 1116, 207 N.Y.S.3d 273 [4th Dept. 2024]; People v. Colon, 211 A.D.3d 1613, 1614, 180 N.Y.S.3d 455 [4th Dept. 2022], lv denied 39 N.Y.3d 1141, 188 N.Y.S.3d 453, 209 N.E.3d 1278 [2023]). In any event, we conclude that defendant's contention is without merit.

First, the testimony of defendant's boyfriend and the victim was not incredible as a matter of law, that is, their testimony “was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory” (People v. Krista M.G., 228 A.D.3d 1300, 1302, 211 N.Y.S.3d 712 [4th Dept. 2024] [internal quotation marks omitted]; see People v. Rojas-Aponte, 224 A.D.3d 1264, 1265, 204 N.Y.S.3d 663 [4th Dept. 2024]). Second, this is not a case where the evidence established only defendant's mere presence at the scene of the crimes (cf. People v. Ramos, 218 A.D.3d 1113, 1114-1115, 194 N.Y.S.3d 612 [4th Dept. 2023]; see generally People v. Cabey, 85 N.Y.2d 417, 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995]). The victim testified that he exchanged text messages with defendant, asking whether she had any girlfriends “that wanted to catch a buzz and hang out.” According to the victim's testimony, defendant indicated that she had a friend who would do that, and they arranged for defendant and her friend to pick up the victim. Meanwhile, according to the testimony of defendant's boyfriend, whom she had been dating for about a month prior, defendant said that the victim had propositioned her to have sex with him in exchange for drugs and that the victim had previously raped her, which enraged the boyfriend. The boyfriend testified that he, defendant, her friend, and a second man came up with a plan to kill the victim, and that the four drove out to a road where the boyfriend and the second man, both armed with knives, exited the vehicle. In addition, the testimony of the victim and the boyfriend established that defendant and her friend then picked up the victim and drove him to the same location where the boyfriend and the second man were waiting. The testimony further established that the boyfriend and the second man robbed and cut the victim before fleeing the scene. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that there is a valid line of reasoning and permissible inferences to support the conclusion that defendant had “a shared intent, or ‘community of purpose’ with the principal[s]” (People v. Carpenter, 138 A.D.3d 1130, 1131, 30 N.Y.S.3d 299 [2d Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 356, 63 N.E.3d 76 [2016]; see Cabey, 85 N.Y.2d at 421, 626 N.Y.S.2d 20, 649 N.E.2d 1164), and that she “intentionally aided the principal[s] in bringing forth [the] result” (People v. Kaplan, 76 N.Y.2d 140, 146, 556 N.Y.S.2d 976, 556 N.E.2d 415 [1990] [emphasis omitted]; see People v. Spencer, 181 A.D.3d 1257, 1258, 120 N.Y.S.3d 536 [4th Dept. 2020], lv denied 35 N.Y.3d 1029, 126 N.Y.S.3d 23, 149 N.E.3d 861 [2020]; cf. People v. Nelson, 178 A.D.3d 1395, 1396, 116 N.Y.S.3d 826 [4th Dept. 2019], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 8, 148 N.E.3d 472 [2020]).

Third, it is well settled that “[a]ccomplice testimony must be corroborated by evidence ‘tending to connect the defendant with the commission of [an] offense’ ” (People v. McCutcheon, 219 A.D.3d 1698, 1699-1700, 197 N.Y.S.3d 627 [4th Dept. 2023], lv denied 40 N.Y.3d 1040, 200 N.Y.S.3d 778, 223 N.E.3d 1254 [2023], quoting CPL 60.22 [1]). Here, the non-accomplice testimony, including the testimony of the victim, “ ‘ten[ded] to connect the defendant with the commission of the crime[s] in such a way as [could] reasonably satisfy the jury that the accomplice [was] telling the truth’ ” (People v. Reome, 15 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010]; see McCutcheon, 219 A.D.3d at 1700, 197 N.Y.S.3d 627). Fourth, “[t]he affirmative defense of renunciation requires a defendant to meet an initial burden of establishing, by a preponderance of the evidence ․, that [the defendant] ‘withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof’ ” (People v. Brewer, 118 A.D.3d 1409, 1412, 988 N.Y.S.2d 752 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] [emphasis omitted], quoting Penal Law § 40.10 [1]). Here, there was testimony that defendant shouted to the boyfriend as he was struggling with the victim to stop and return to the car, but that did not constitute a renunciation inasmuch as there was no withdrawal from participation prior to the commission of the crimes (see generally People v. Sanford, 148 A.D.3d 1580, 1582, 51 N.Y.S.3d 728 [4th Dept. 2017], lv denied 29 N.Y.3d 1133, 64 N.Y.S.3d 683, 86 N.E.3d 575 [2017]; People v. Stevens, 65 A.D.3d 759, 762-763, 884 N.Y.S.2d 283 [3d Dept. 2009], lv denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009]).

Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Defendant further contends that County Court erred in instructing the jury with respect to accomplice testimony. The court instructed the jurors that they were to determine whether the boyfriend was an accomplice and, if so, that they would need to find that his testimony was corroborated by other evidence tending to connect defendant to the commission of the crimes. Defendant contends that the court should have charged the jury that the boyfriend was an accomplice as a matter of law. Defendant's contention, however, is not preserved for our review (see People v. Lipton, 54 N.Y.2d 340, 351, 445 N.Y.S.2d 430, 429 N.E.2d 1059 [1981]; People v. Ortiz, 194 A.D.3d 1351, 1351, 143 N.Y.S.3d 637 [4th Dept. 2021], lv denied 37 N.Y.3d 994, 152 N.Y.S.3d 425, 174 N.E.3d 365 [2021]). In any event, as explained above, the boyfriend's testimony was sufficiently corroborated (see People v. Elder, 108 A.D.3d 1117, 1117, 968 N.Y.S.2d 307 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014]; People v. Peoples, 66 A.D.3d 1419, 1419, 885 N.Y.S.2d 819 [4th Dept. 2009], lv denied 14 N.Y.3d 843, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010]). Defendant also failed to preserve for our review her further contention that the court erred in allowing evidence of flight and failing to instruct the jury on the limited use of that evidence (see People v. Jones, 213 A.D.3d 1279, 1279-1280, 183 N.Y.S.3d 214 [4th Dept. 2023], lv denied 39 N.Y.3d 1155, 190 N.Y.S.3d 674, 211 N.E.3d 1127 [2023]; People v. Keating, 183 A.D.3d 595, 597, 123 N.Y.S.3d 160 [2d Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 533, 158 N.E.3d 550 [2020]; People v. Wilson, 34 A.D.3d 1276, 1276, 823 N.Y.S.2d 814 [4th Dept. 2006], lv denied 8 N.Y.3d 886, 832 N.Y.S.2d 498, 864 N.E.2d 628 [2007]), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Contrary to defendant's contention, the court properly denied her request for a missing witness instruction with respect to her friend and the second man who, as noted above, were present at the scene of the crimes. Defendant failed to meet her burden of establishing that the witnesses would naturally be expected to provide testimony favorable to the People (see People v. Hirji, 185 A.D.3d 1053, 1054, 128 N.Y.S.3d 570 [2d Dept. 2020]; People v. Crowder, 96 A.D.3d 515, 516, 946 N.Y.S.2d 169 [1st Dept. 2012]; see generally People v. Smith, 33 N.Y.3d 454, 458-459, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019]). Indeed, as accomplices, their testimony “would have been presumptively suspect ․ or subject to impeachment detrimental to the People's case” (People v. Spagnuolo, 173 A.D.3d 1832, 1833, 104 N.Y.S.3d 461 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 632, 134 N.E.3d 631 [2019] [internal quotation marks omitted]).

We reject defendant's contention that the court erred in denying, after a hearing, her application to be sentenced pursuant to Penal Law § 60.12 (see generally Krista M.G., 228 A.D.3d at 1301-1302, 211 N.Y.S.3d 712; People v. Vilella, 213 A.D.3d 1282, 1283, 181 N.Y.S.3d 504 [4th Dept. 2023], lv denied 39 N.Y.3d 1157, 190 N.Y.S.3d 688, 211 N.E.3d 1141 [2023]). Defendant did not establish by a preponderance of the evidence that “substantial physical, sexual or psychological abuse ․ was a significant contributing factor to [her] criminal behavior” (§ 60.12 [1]; cf. People v. Addimando, 197 A.D.3d 106, 116-117, 152 N.Y.S.3d 33 [2d Dept. 2021]).

As defendant contends and the People correctly concede, however, the court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20; see People v. Brady, 195 A.D.3d 1545, 1546, 145 N.Y.S.3d 900 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 689, 172 N.E.3d 801 [2021]). Although the uniform sentence and commitment form states that defendant was sentenced on each count to concurrent terms of incarceration of five years with three years of postrelease supervision, the court in fact did not “impose a sentence for each count of which defendant was convicted” (People v. Bradley, 52 A.D.3d 1261, 1262, 859 N.Y.S.2d 575 [4th Dept. 2008], lv denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657 [2008]; see CPL 380.20). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. In light of our determination, we do not address defendant's contention regarding the severity of the sentence.

We have examined defendant's remaining contentions and conclude that they do not warrant further modification or reversal of the judgment.