People v McFadden

People v McFadden 2011 NY Slip Op 08673 Decided on December 1, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 1, 2011
Tom, J.P., Andrias, Catterson, Abdus-Salaam, Román, JJ.
6205 3401/07

[*1]The People of the State of New York, Respondent,

v

Brian McFadden, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Lauren Stephens-Davidowitz of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Thomas R.
Villecco of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Ethan Greenberg, J.), rendered July 6, 2009, convicting defendant, after a jury trial, of robbery in the first degree, attempted robbery in the second degree, and criminal possession of stolen property in the third and fourth degrees, and sentencing him, as a persistent violent felony offender, to an aggregate term of 43½ years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the first-degree robbery conviction to 20 years to life and directing that all sentences run concurrently, resulting in a new an aggregate term of 20 years to life, and otherwise affirmed.

The verdict was not repugnant, and the court properly denied defendant's application to resubmit the case to the jury. This case involves an attempted carjacking, followed a few minutes later by a completed carjacking. Four days later, the police apprehended defendant and his codefendant while they were in the stolen car.

The only property taken in the completed carjacking was the car. The jury convicted defendant of first-degree robbery, but acquitted him of second-degree robbery under a provision (Penal Law § 160.10[3]) that required a finding that the property stolen was a motor vehicle as defined in Vehicle and Traffic Law § 125. The jury also convicted defendant of two counts of criminal possession of stolen property, one of which similarly required a finding that the property was a motor vehicle (see Penal Law § 165.45[5]). Even if the verdicts appear illogical under the facts of the case, they were not legally repugnant.

The acquittal on the second-degree robbery charge was not conclusive as to any necessary element of any of the convictions (see People v Tucker, 55 NY2d 1, 7 [1981]). "If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" (People v Muhammad, NY3d , 2011 NY Slip Op 07302 [Oct 20, 2011]). Regardless of whether a verdict is illogical under the evidence presented, "factual repugnancy which can be attributed to mistake, confusion, compromise or mercy does not provide a reviewing court with the power to overturn a verdict" (id. at *9-10).

The verdict was based on legally sufficient evidence and was not against the weight of the [*2]evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning identification and credibility. With regard to the attempted robbery, the totality of defendant's conduct supports the inference of accessorial liability (see e.g. Matter of Wade F., 49 NY2d 730 [1980]; Matter of Marc H., 284 AD2d 211 [2001]; Matter of Devin R, 254 AD2d 221 [1998]).

The court properly denied defendant's motion to suppress identification testimony. The lineup was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). The photographs of the lineup, although of poor quality, were adequate to show that the lineup did not in any way single out defendant. In particular, the hearing evidence supports the court's finding that the disparity between the recorded ages of defendant and the fillers was not reflected in their physical appearances (see People v Amuso, 39 AD3d 425, 425-426 [2007], lv denied 9 NY3d 862 [2007]). There is no evidence that the witnesses influenced each others' identifications. We have considered and rejected defendant's remaining arguments regarding the lineup.

Defendant's constitutional challenge to his sentencing as a persistent violent felony offender is without merit (see Almendarez-Torres v United States, 523 US 224 [1998]; People v Bell, 15 NY3d 935, 936 [2010]).

We find the sentence excessive to the extent indicated.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2011

CLERK