Opinion
1791
October 9, 2003.
Judgment, Supreme Court, Bronx County (Barbara Newman, J.), rendered March 8, 2001, convicting defendant, after a jury trial, of robbery in the first degree (three counts), burglary in the second degree and criminal use of a firearm in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 12 years, unanimously affirmed.
Jonathan Zucker, for respondent.
Robert E. Carrigan, for defendant-appellant.
Before: Saxe, J.P., Rosenberger, Williams, Marlow, Gonzalez, JJ.
When instructing the jury on the issue of acting in concert in this trial involving charges of robbery in the first and second degrees, the trial court properly rejected defendant's request to instruct the jury on the subject of accessorial liability for different degrees of a crime, as set forth in Penal Law § 20.15. Such an instruction would have had no applicability to the facts, and would have tended to confuse or mislead the jury.
The aggravating factor elevating the crime to robbery in the first degree was the fact that defendant's companion, "another participant in the crime," was armed with a deadly weapon (Penal Law § 160.15). This is a factor "to which a culpable mental state does not ordinarily attach" (People v. Mitchell, 77 N.Y.2d 624, 627; see also People v. Miller, 87 N.Y.2d 211; compare People v. Castro, 55 N.Y.2d 972). The People were not required to prove that defendant knew his companion was armed with a deadly weapon (People v. Pagan, 227 A.D.2d 133, lv denied 88 N.Y.2d 991), although the inference that defendant had such knowledge is inescapable in any event. Accordingly, there was no reason to instruct the jury on Penal Law § 20.15.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.