PEOPLE v. CYRUS (2005)

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered September 26, 2002 in Albany County, upon a verdict convicting defendant of the crime of robbery in the second degree.

Defendant and his codefendant, Michael Fenner, were indicted on two counts of robbery in the second degree for their involvement in a mugging.   Fenner ultimately pleaded guilty to a charge of attempted robbery in the second degree, with the understanding that he would testify against defendant.   Following a trial, at which Fenner was not called to testify, the jury acquitted defendant of the count of robbery in the second degree alleging the display of a firearm (see Penal Law § 160.10[2][b] ), but convicted him of the remaining count of robbery aided by an accomplice (see Penal Law § 160.10 [1] ).   Defendant was sentenced to a prison term of six years, and now appeals.

 Initially, we conclude that the evidence was legally sufficient to prove the element of being “aided by another person actually present” (Penal Law § 160.10[1] ).   At trial, the testimony of eyewitnesses established that, at approximately 1:30 A.M. on the day in question, defendant and Fenner approached the victim, who was walking with two friends on a city sidewalk.   Defendant asked the victim for a dollar and tapped the victim's pocket.   When the victim refused, defendant pointed an object at the victim and pushed him away from his friends into a dark, recessed doorway.   While defendant was doing so, Fenner held back the victim's friends saying, “it will be over soon.”   After defendant searched the victim's pockets, he grabbed the victim's wallet and fled the scene with Fenner.

Viewing this evidence in the light most favorable to the People, we find that the jury could have rationally determined that defendant committed the robbery and received the aid of Fenner, who restrained those who might have intervened on the victim's behalf and, thus, aided in the robbery of the victim (see People v. Crutchfield, 149 A.D.2d 857, 858, 540 N.Y.S.2d 366 [1989], lv. denied 74 N.Y.2d 738, 545 N.Y.S.2d 112, 543 N.E.2d 755 [1989];  cf. People v. Hedgeman, 70 N.Y.2d 533, 543, 523 N.Y.S.2d 46, 517 N.E.2d 858 [1987];  People v. Coleman, 5 A.D.3d 956, 959, 773 N.Y.S.2d 747 [2004], lvs. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199 [2004] ).   In addition, we are satisfied that the jury gave the evidence the weight it should have been accorded (see People v. Gonzalez, 158 A.D.2d 399, 399-400, 551 N.Y.S.2d 233 [1990], lv. denied 75 N.Y.2d 966, 556 N.Y.S.2d 251, 555 N.E.2d 623 [1990] ).

 Next, defendant contends that the prosecution committed a Brady violation by failing to disclose the victim's misidentification of defendant until the eve of trial.   However, this exculpatory evidence had been disclosed directly to defendant's counsel by the investigating detective well before trial commenced, giving defendant a meaningful opportunity to use the information at trial (see People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349 [1987];  People v. Clarke, 5 A.D.3d 807, 809-810, 772 N.Y.S.2d 630 [2004], lvs. denied 2 N.Y.3d 796, 781 N.Y.S.2d 295, 814 N.E.2d 467 [2004] ). 2 N.Y.3d 797, 781 N.Y.S.2d 296, 814 N.E.2d 468

 We also find no error in Supreme Court's denial of defendant's request for a missing witness charge with respect to his accomplice, Fenner.   The People are not required to call an accomplice whose testimony would be “ presumptively suspect” (People v. Rios, 184 A.D.2d 244, 245, 584 N.Y.S.2d 813 [1992], lv. denied 80 N.Y.2d 908, 588 N.Y.S.2d 834, 602 N.E.2d 242 [1992];  see People v. Batson, 219 A.D.2d 538, 539, 631 N.Y.S.2d 345 [1995], lv. denied 87 N.Y.2d 844, 638 N.Y.S.2d 602, 661 N.E.2d 1383 [1995] ).

Finally, in light of defendant's criminal history, we find no abuse of discretion or any extraordinary circumstances that would warrant modification of the sentence (see People v. Smith, 300 A.D.2d 745, 746, 751 N.Y.S.2d 665 [2002], lv. denied 99 N.Y.2d 616, 757 N.Y.S.2d 826, 787 N.E.2d 1172 [2003];  People v. Bell, 290 A.D.2d 729, 730, 736 N.Y.S.2d 487 [2002] ).

ORDERED that the judgment is affirmed.

ROSE, J.

MERCURE, J.P., CREW III, PETERS and MUGGLIN, JJ., concur.