PEOPLE v. BROOKS (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him upon a jury verdict of attempted robbery in the third degree (Penal Law §§ 110.00, 160.05).  We reject defendant's contention that Supreme Court erred in charging the jury on attempted robbery in the third degree as a lesser included offense of robbery in the third degree.  “A lesser [included] offense must be submitted to the jury if (1) it is actually a lesser included offense of the greater charge, and (2) the jury is ‘warranted in finding that the defendant committed the lesser but not the greater crime’ ․, i.e., there is a ‘reasonable view of the evidence’ to support such a finding” (People v. Cabassa, 79 N.Y.2d 722, 728–729, 586 N.Y.S.2d 234, 598 N.E.2d 1 [1992], cert denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563 [1992], quoting People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982];  see CPL 300.50[1] ).  Contrary to defendant's contention, there is a reasonable view of the trial evidence, which included testimony and surveillance footage of the incident, to support a finding by the jury that defendant attempted to steal property forcibly from a loss prevention officer at a Tops Market, but did not succeed in doing so (see generally People v. Leon, 227 A.D.2d 925, 926, 643 N.Y.S.2d 262 [4th Dept. 1996] ).

We reject defendant's further contention that the court erred in denying his challenge for cause to a prospective juror.  “CPL 270.20(1)(b) provides that a party may challenge a potential juror for cause if the juror ‘has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial’ ” (People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ).  Here, “nothing that [the prospective juror] said raised a serious doubt as to her ability to render an impartial verdict” (People v. Fowler–Graham, 124 A.D.3d 1403, 1403, 999 N.Y.S.2d 663 [4th Dept. 2015], lv denied 25 N.Y.3d 1072, 12 N.Y.S.3d 623, 34 N.E.3d 374 [2015];  see People v. DeFreitas, 116 A.D.3d 1078, 1079–1080, 984 N.Y.S.2d 423 [3d Dept. 2014], lv denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ).

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

Memorandum: