Opinion
369 KA 16–00951
03-23-2018
The PEOPLE of the State of New York, Respondent, v. Timothy R. BROOKS, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., WASHINGTON, D.C. (HILARY P. GERZHOY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (JOSEPH PLUKAS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., WASHINGTON, D.C. (HILARY P. GERZHOY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (JOSEPH PLUKAS OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him upon a jury verdict of attempted robbery in the third degree ( Penal Law §§ 110.00, 160.05 ). We reject defendant's contention that Supreme Court erred in charging the jury on attempted robbery in the third degree as a lesser included offense of robbery in the third degree. "A lesser [included] offense must be submitted to the jury if (1) it is actually a lesser included offense of the greater charge, and (2) the jury is ‘warranted in finding that the defendant committed the lesser but not the greater crime’ ..., i.e., there is a ‘reasonable view of the evidence’ to support such a finding" ( People v. Cabassa, 79 N.Y.2d 722, 728–729, 586 N.Y.S.2d 234, 598 N.E.2d 1 [1992], cert denied sub nom. Lind v. New York, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563 [1992], quoting People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ; see CPL 300.50[1] ). Contrary to defendant's contention, there is a reasonable view of the trial evidence, which included testimony and surveillance footage of the incident, to support a finding by the jury that defendant attempted to steal property forcibly from a loss prevention officer at a Tops Market, but did not succeed in doing so (see generally People v. Leon, 227 A.D.2d 925, 926, 643 N.Y.S.2d 262 [4th Dept. 1996] ).
We reject defendant's further contention that the court erred in denying his challenge for cause to a prospective juror. " CPL 270.20(1)(b) provides that a party may challenge a potential juror for cause if the juror ‘has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial’ " ( People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 [2012] ). Here, "nothing that [the prospective juror] said raised a serious doubt as to her ability to render an impartial verdict" ( People v. Fowler–Graham, 124 A.D.3d 1403, 1403, 999 N.Y.S.2d 663 [4th Dept. 2015], lv denied 25 N.Y.3d 1072, 12 N.Y.S.3d 623, 34 N.E.3d 374 [2015] ; see People v. DeFreitas, 116 A.D.3d 1078, 1079–1080, 984 N.Y.S.2d 423 [3d Dept. 2014], lv denied 24 N.Y.3d 960, 996 N.Y.S.2d 219, 20 N.E.3d 999 [2014] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.