PEOPLE v. WASHINGTON

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

The PEOPLE, etc., Respondent, v. Henry WASHINGTON, Appellant.

Decided: May 29, 2001

DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, and HOWARD MILLER, JJ. Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Lisa Drury, and Cindy Jo of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 28, 1999, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to support his conviction of robbery in the second degree is unpreserved for appellate review (see, CPL 470.05[2];  People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4;  People v. Fryar, 276 A.D.2d 641, 714 N.Y.S.2d 890).   In any event, viewing the evidence in a light most favorable to the prosecution, we find that it was legally sufficient to establish that the defendant was “aided by another person actually present”, as required for a conviction of robbery in the second degree under Penal Law § 160.10(1).

On August 31, 1998, at about 12:30 P.M., the complainant was leaving her apartment when she observed an old car, with two male occupants, pull up next to her apartment.   She saw one man exit the car from the passenger seat and noticed that the driver remained in the car with the engine running.   The man who exited, identified by both the complainant and an eyewitness as the defendant, snatched her purse and ran back to the getaway car.   The driver never exited.   The getaway car drove off in reverse because another car blocked its escape.

Based on this evidence, we are satisfied that the driver posed a sufficient threat of additional violence and was “ready, willing or able” (People v. Hedgeman, 70 N.Y.2d 533, 543, 523 N.Y.S.2d 46, 517 N.E.2d 858) to assist the defendant so as to satisfy the aggravating element of being “aided by another person actually present” in robbery in the second degree (Penal Law § 160.10 [1];  see, People v. Hedgeman, supra;  People v. Dennis, 146 A.D.2d 708, 537 N.Y.S.2d 204, affd. 75 N.Y.2d 821, 552 N.Y.S.2d 559, 551 N.E.2d 1237).

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