Opinion
December 5, 1991
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
Undercover officers observed defendant and his accomplice standing together on a train platform, immediately prior to entering separate subway cars, coming together, acknowledging one another, and then commence moving from car to car. One officer followed the pair, staying one car behind. When they reached their intended victim, the perpetrators sat down near her, separately. As the subway train pulled into the station, one perpetrator held the car door open as the other demanded the victim's handbag, as he grasped for it. The victim backed into a corner, refusing to give up her bag which incited one of the perpetrators to shout, "Shoot her down." The defendants were immediately apprehended.
The charge for which defendant was convicted required proof that he attempted to forcibly steal property when aided by another person actually present. The only significant issue on appeal with respect to legal sufficiency concerns the evidence of force. Forcible stealing is defined in terms of the use or threatened use of physical force during the course of the robbery, compelling the owner to give up the property, or overcoming resistance (Penal Law § 160.00). The perpetrators' conduct, coupled with the explicit threat in the present case, establishes the element of force (see, e.g., People v Woods, 41 N.Y.2d 279; People v Zagorski, 135 A.D.2d 594; People v Santiago, 62 A.D.2d 572, affd 48 N.Y.2d 1023). As such, circumstances which otherwise would constitute attempted larceny were escalated to attempted robbery. Further, the evidence is legally sufficient to establish that defendant intentionally aided his co-defendant (Penal Law § 20.00) and that he intended to participate (see, People v Corbett, 162 A.D.2d 415, lv denied 77 N.Y.2d 837).
Under the standards set forth in People v Bleakley ( 69 N.Y.2d 490, 495), the verdict was not against the weight of the evidence.
By choosing not to have the lesser included offense of attempted petit larceny submitted to the jury, defendant waived any such challenge on appeal. In any event, there was no reasonable view of the evidence that defendant committed only the lesser offense, but not the greater offense (CPL 300.50; People v Glover, 57 N.Y.2d 61, 63-64).
Since this was a case of mixed circumstantial and direct evidence, the court was not required to deliver a moral certainty charge (cf., generally, People v Ford, 66 N.Y.2d 428). Since defendant failed to except to the court's submission, sua sponte of a no-adverse inference charge (CPL 300.10), defendant has failed to preserve this claim for review as a matter of law (CPL 470.05; People v Dekle, 56 N.Y.2d 835). If we were to review in the interest of justice, we would find that reversal is not required (People v Vereen, 45 N.Y.2d 856; People v Temple, 165 A.D.2d 748, lv denied 76 N.Y.2d 944, 945). Likewise, the defendant has not preserved any challenge to the court's supplemental instructions by appropriate objection and if we were to review, we would find defendant's claim to be without merit.
By failing to submit a post judgment motion pursuant to CPL 440.10 (1) (h) challenging the effectiveness of his trial representation, defendant has failed to provide an adequate record for review of his present appellate claims (People v Jones, 55 N.Y.2d 771, 773; People v Brown, 45 N.Y.2d 852, 853-854). On the present state of the record, we cannot conclude that defendant had met his burden of demonstrating that he was denied meaningful representation (People v Baldi, 54 N.Y.2d 137, 146-147), and that but for counsel's purported incompetence, the outcome of the proceedings would have been different (Strickland v Washington, 466 U.S. 668, 690). The record reveals only defendant's disagreement with counsel's apparent strategies (People v Rivera, 71 N.Y.2d 705, 708-709), which does not provide a basis for reversal.
In conclusion, considering defendant's lengthy criminal record, it cannot be said that the sentencing court abused its discretion (People v Farrar, 52 N.Y.2d 302, 305-306), and we find no basis to disturb that exercise of discretion.
Concur — Sullivan, J.P., Milonas, Wallach, Kupferman and Asch, JJ.