PEOPLE v. BIDO

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Juan BIDO, Defendant-Appellant.

Decided: January 21, 1997

Before MURPHY, P.J., and MILONAS, ROSENBERGER, ELLERIN and WILLIAMS, JJ. Bruno C. Bier, for Respondent. Susan M. Davies, for Defendant-Appellant.

Judgment, Supreme Court, New York County (James Leff, J.), rendered October 25, 1993, convicting defendant, after a jury trial, of attempted robbery in the first and second degrees, and sentencing him, as a second felony offender, to concurrent terms of 71/212 to 15 years and 31/212 to 7 years, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence.   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), a reasonable jury could have concluded that defendant was a participant in the attempted robbery.   The jury could reasonably have concluded that defendant was sitting in a car double-parked near the scene of the crime with the engine running and the doors unlocked, and that as soon as one of the codefendants got into the car, defendant drove at a high speed, running through several red lights and swerving into the wrong traffic lane, and drove four more blocks after it was clear that the police were following.   Finally, the gun, used by the codefendant in furtherance of the crime, was found under the front passenger's seat, occupied by the codefendant.   All these factors could lead a reasonable trier of fact to conclude that there was a pre-arranged plan between the actual perpetrators and defendant (see, People v. Jackson, 44 N.Y.2d 935, 408 N.Y.S.2d 315, 380 N.E.2d 147).   The testimony of the two arresting officers that defendant appeared calm after the high speed and wild automobile chase did not constitute impermissible comment on defendant's right to remain silent, but rather, in light of defendant's version of the incident, was an appropriate observation of defendant's demeanor, over which he did not exercise conscious or knowing control (see, People v. Hager, 69 N.Y.2d 141, 512 N.Y.S.2d 794, 505 N.E.2d 237).   The prosecutor's summation comment on defendant's silence was not objected to, and was responsive to defendant's own summation (see, People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977).

MEMORANDUM DECISION.