PEOPLE v. MURAD (2008)

Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.), rendered August 14, 2006, convicting him of robbery in the first degree, robbery in the second degree, and conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court did not err in its instructions to the jury regarding the lack of materiality of the defendant's knowledge of whether an accomplice was in possession of, and intended to threaten the victim with, a knife in the commission of the robbery.   Where a defendant's guilt of robbery in the first degree “is predicated upon the forcible taking of property, coupled with the aggravating factor of any participant in the crime being armed with a deadly weapon ․ the defendant's knowledge that an accomplice was armed with a deadly weapon is not an element of robbery in the first degree” (People v. Foster, 33 A.D.3d 814, 814, 826 N.Y.S.2d 288;  see People v. Garcia, 302 A.D.2d 474, 475, 753 N.Y.S.2d 754;  People v. Murdough, 287 A.D.2d 658, 659, 733 N.Y.S.2d 78).   In such a case, “lack of proof of the defendant's knowledge that a [deadly weapon] would be used was immaterial” (People v. Garcia, 302 A.D.2d at 475, 753 N.Y.S.2d 754;  see People v. Murdough, 287 A.D.2d at 659, 733 N.Y.S.2d 78).   Accordingly, the court correctly instructed the jurors that if they found, beyond a reasonable doubt, that the defendant “had the mental culpability required for the commission of the crime of robbery, which is forcibly stealing,” and that “another person involved in this crime of robbery use[d] or threaten[ed] the immediate use of a dangerous instrument,” they should find the defendant guilty, “even if [the defendant] did not know a dangerous instrument was to be used.”

 Likewise, there is no merit to the defendant's contention that the court erred in its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413).  “[T]he extent to which the prosecution should be allowed to impeach the credibility of a defendant is a matter that is generally left to the sound discretion of the trial court” (People v. Carrasquillo, 204 A.D.2d 735, 735, 612 N.Y.S.2d 424;  see People v. Bennette, 56 N.Y.2d 142, 146, 451 N.Y.S.2d 647, 436 N.E.2d 1249;  People v. Johnston, 186 A.D.2d 822, 822, 589 N.Y.S.2d 351).   Here, the trial court's Sandoval compromise permitting the People to inquire only whether the defendant had been convicted of a nonviolent felony outside the jurisdiction of the State of New York, but precluding any questioning about the underlying facts, avoided any undue prejudice to the defendant and represented a provident exercise of the court's discretion (see People v. Jamison, 303 A.D.2d 603, 603, 756 N.Y.S.2d 495;  People v. Carrasquillo, 204 A.D.2d at 735, 612 N.Y.S.2d 424;  People v. Ricks, 135 A.D.2d 844, 845, 522 N.Y.S.2d 945;  People v. Scott, 118 A.D.2d 881, 882, 500 N.Y.S.2d 708).

The defendant's claim that the court should have set forth its reasoning and the balancing process in which it engaged in reaching the Sandoval ruling is not preserved for appellate review.   In any event, “[o]ur law does not require the application of any particular balancing process in Sandoval determinations ․ Similarly, an exercise of a trial court's Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning” (People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [internal quotation marks and citations omitted];  see People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444;  People v. Ellis, 183 A.D.2d 534, 535, 585 N.Y.S.2d 177, affd. 81 N.Y.2d 854, 597 N.Y.S.2d 623, 613 N.E.2d 529).

The defendant's contention that certain oral statements he made at the time of his arrest should have been suppressed is academic in light of the fact that those statements were not introduced at trial (see People v. Menendez, 50 A.D.3d 1061, 856 N.Y.S.2d 647, lv. denied 10 N.Y.3d 937, 862 N.Y.S.2d 343, 892 N.E.2d 409;  People v. Nevins, 16 A.D.3d 1046, 791 N.Y.S.2d 771, cert. denied 548 U.S. 911, 126 S.Ct. 2938, 165 L.Ed.2d 963;  People v. Musmacher, 133 A.D.2d 352, 353, 519 N.Y.S.2d 253).

The record reveals that the defendant was provided with effective assistance of counsel throughout the proceedings (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;  People v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883;  People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The defendant's Brady argument (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) is unpreserved for appellate review (see CPL 470.05[2];  People v. Higgins, 298 A.D.2d 529, 530, 748 N.Y.S.2d 663) and, in any event, is without merit (see People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915;  People v. Moore, 43 A.D.3d 1085, 1085, 843 N.Y.S.2d 102;  People v. Bryant, 247 A.D.2d 400, 401, 668 N.Y.S.2d 646;  People v. Figueroa, 213 A.D.2d 669, 669, 625 N.Y.S.2d 49).

Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).   There is no merit to the defendant's contention that, because his sentence for robbery in the first degree is seven years, instead of the five years imposed on his codefendants as part of their plea bargain, he was penalized for choosing to exercise his right to go to trial.   “It is not now to be questioned that a State may encourage a guilty plea by offering substantial benefits, notwithstanding the fact that every such instance is bound to have the concomitant effect of discouraging a defendant's assertion of his trial rights.   Given that the quid pro quo of the bargaining process will almost necessarily involve offers to moderate sentences that ordinarily would be greater, it is also to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v. Pena, 50 N.Y.2d 400, 411-412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814 [internal citations omitted];  see Corbitt v. New Jersey, 439 U.S. 212, 219-221, 99 S.Ct. 492, 58 L.Ed.2d 466;  Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604).