PEOPLE v. WOODS

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

PEOPLE of the State of New York, Respondent, v. Wardale WOODS, Appellant.

Decided: April 25, 1997

Before PINE, J.P., and LAWTON, CALLAHAN, DOERR and FALLON, JJ. Linda S. Reynolds by Vincient Gugino, Buffalo, for Appellant. Frank J. Clark, III by Joseph Notaro, Buffalo, for Respondent.

 Defendant contends that the evidence is legally insufficient to support his conviction of robbery in the first degree as an accomplice.   We disagree.  “Accessorial liability requires only that defendant, acting with the mental culpability required for the commission of the crime, intentionally aid another in the conduct constituting the offense” (People v. Johnson, 142 A.D.2d 952, 530 N.Y.S.2d 378, lv. denied 72 N.Y.2d 1046, 534 N.Y.S.2d 945, 531 N.E.2d 665;  see, People v. Flagg, 180 A.D.2d 813, 580 N.Y.S.2d 417).  Viewed in the light most favorable to the People (see, People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367), the evidence establishes that defendant intentionally aided the principals in their commission of the crime (see, People v. Jackson, 44 N.Y.2d 935, 408 N.Y.S.2d 315, 380 N.E.2d 147).   We further conclude that the verdict is supported by the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Supreme Court properly denied defendant's request for a missing witness charge.   Although defendant met his initial burden of showing that the witness was knowledgeable about a material issue and would be expected to testify favorably to the People (see, People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583), the People established that the witness, who was on military duty in Wisconsin at the time of trial, was unavailable to them (see, People v. Gonzalez, supra, at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  People v. Skaar, 225 A.D.2d 824, 638 N.Y.S.2d 846, lv. denied 88 N.Y.2d 854, 644 N.Y.S.2d 700, 667 N.E.2d 350).

 The court also properly denied the request of defendant for a charge concerning the voluntariness of a statement he made to the arresting officer about cocaine found in the car that he was driving.  “Because defendant failed, during the trial, to raise a factual dispute by adducing evidence or otherwise contending that the statement was involuntarily made, the trial court was not required to submit the issue to the jury” (People v. Conway, 186 A.D.2d 1050, 588 N.Y.S.2d 491, lv. denied 81 N.Y.2d 761, 594 N.Y.S.2d 723, 610 N.E.2d 396;  see, People v. Betances, 165 A.D.2d 754, 564 N.Y.S.2d 269, lv. denied 76 N.Y.2d 1019, 565 N.Y.S.2d 769, 566 N.E.2d 1174;  cf., People v. Holder, 214 A.D.2d 682, 625 N.Y.S.2d 590).

 We reject the further contention of defendant that the court should have granted his motion to suppress showup identification evidence.   Defendant was identified at the crime scene by the store clerk approximately one hour and 20 minutes after the robbery.   Under the circumstances, the identification procedure was not improper (see, People v. Ortiz, 232 A.D.2d 180, 648 N.Y.S.2d 75;  People v. Wells, 221 A.D.2d 281, 634 N.Y.S.2d 462, lv. denied 87 N.Y.2d 978, 642 N.Y.S.2d 207, 664 N.E.2d 1270;  People v. Maybell, 198 A.D.2d 108, 603 N.Y.S.2d 161, lv. denied 82 N.Y.2d 927, 610 N.Y.S.2d 179, 632 N.E.2d 489).

Finally, upon our review of the record, we conclude that the sentence is neither unduly harsh nor severe (see, CPL 470.15[6][b]).

Judgment unanimously affirmed.

MEMORANDUM: