PEOPLE v. SLOAN (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20), robbery in the second degree (§ 160.10[1] ), and criminal mischief in the fourth degree (§ 145.00[1] ), stemming from his unlawful entry into a convenience store that had closed for the night.   Defendant and a second person entered the store and were stealing property when they were interrupted by the tenant of an attached apartment.   The second participant in the crimes left the store by climbing out a window, and he then remained outside.   The tenant confronted defendant, who knocked the tenant to the floor, and defendant then also climbed out the window.   County Court properly refused to suppress defendant's written statement to the police.   The record does not support the contention of defendant that a portion of his statement was elicited in response to a promise by the investigator that created a substantial risk of defendant's incriminating himself falsely and thus rendered the statement involuntarily made (see CPL 60.45[1], [2][b][i];  People v. Pou, 185 A.D.2d 642, 585 N.Y.S.2d 911, lv. denied 81 N.Y.2d 891, 597 N.Y.S.2d 953, 613 N.E.2d 985;  see also People v. Rossi, 26 A.D.3d 782, 807 N.Y.S.2d 780).

 We further reject defendant's contention that the conviction of robbery in the second degree is not supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The jury could reasonably find that the second person standing just outside the window was “actually present” (Penal Law § 160.10[1];  see People v. Washington, 283 A.D.2d 661, 728 N.Y.S.2d 48;  People v. Casmento, 155 A.D.2d 229, 546 N.Y.S.2d 375, lv. denied 75 N.Y.2d 768, 551 N.Y.S.2d 910, 551 N.E.2d 111), and we thus conclude that the People presented evidence establishing that defendant forcibly stole property while aided by another person actually present.   Also contrary to the contentions of defendant, he received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), and the court did not abuse its discretion in discharging for cause a juror who could not unequivocally state that she could be fair and impartial (see People v. Escoto, 283 A.D.2d 962, 963, 725 N.Y.S.2d 771, lv. denied 96 N.Y.2d 901, 730 N.Y.S.2d 798, 756 N.E.2d 86).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: