People v Florencio
Annotate this CaseDecided on August 2, 2004
Supreme Court, Bronx County
THE PEOPLE OF THE STATE OF NEW YORK
against
FREDDY FLORENCIO AND ANTONIO CASTILLO, Defendants.
3182/2003
Peter J. Benitez, J.
Defendants were charged with Robbery in the First Degree and other crimes. The case was tried before a jury and the crimes of Robbery in the First Degree, PL 160.15 (3) [uses a dangerous instrument]; Robbery in the Second Degree, PL 160.10 (1) [aided]; Robbery in the Second Degree, PL 160.10 (2)(a) [causes physical injury]; Robbery in the Third Degree, PL 160.05; and Assault in the Second Degree, PL 120.05 (2) [intentional physical injury with a dangerous instrument] were submitted to the jury. Without objection the jury was instructed as to each defendant to consider the count charging Robbery in the First Degree and, if they found a particular defendant guilty of that crime, to stop their deliberations as to that defendant. They were further instructed that if they found a particular defendant not guilty of Robbery in the First Degree they were to consider both counts of Robbery in the Second Degree as to that defendant. The jury was instructed to stop their deliberations as to a particular defendant if they found that defendant guilty of either one or both counts charging Robbery in the Second Degree.
The jury found both defendants not guilty of Robbery in the First Degree, not guilty of Robbery in the Second Degree under the aided theory, but found both defendants guilty of Robbery in the Second Degree under the physical injury theory. Before the jury was discharged each defendant argued that the verdict of guilty was repugnant to the verdict of not guilty. The court heard argument, denied the motion and discharged the jury. This motion pursuant to CPL 330.30 (1) challenging the verdicts as repugnant followed. Counsel for Florencio submitted a brief in support of his motion. Counsel for Castillo reviewed that brief and joined in co-defendant's motion. The People oppose the motion.
"Whether verdicts are repugnant or inconsistent (the difference is inconsequential) is determined by examining the charge to see the essential elements of each count, as described by the trial court, and determining whether the jury's findings on those elements can be reconciled." People v. Loughlin, 76 NY2d 804, 806 (1990), citing People v. Tucker, 55 NY2d 1, 6-7 (1981). "The critical concern is that a defendant not be convicted of a [*2]crime when the jury has found that he did not commit one or more of its essential elements." People v. Loughlin, supra, 806. This analysis sometimes requires determining whether a conviction for one crime necessarily negates guilt of the other for which the jury also convicted. See CPL 300.40 (5) and People v. Gallagher, 69 NY2d 525 (1987). Other situations require determining whether an acquittal of one count necessarily negates an essential element of a count on which the jury has convicted. See People v. Tucker, supra.
The Court of Appeals has clearly held that factual consistency in the jury's verdicts is not a legal basis for determining claimed legal inconsistency and that an examination of the court's instructions on the elements of the offenses is the proper basis for an analysis of claimed inconsistency. People v. Green, 71 NY2d 1006 (1988).
Clearly, the elements of Robbery Second Degree (aided) and Robbery Second Degree (injury), as defined by the Penal Law, are not identical and acquittal of one does not necessarily negate guilt of the other. People v. Jones, 126 AD2d 401 (1st Dept. 1987). Rather, defendants argue that, based on this court's instructions to the jury on the elements of the two different counts charging Robbery in the Second Degree, the verdicts of not guilty on Robbery in the Second Degree under the aided theory are inconsistent with a finding that each defendant separately committed a robbery of the single victim and caused injury to him. Defendants contend that the court's instructions required that if each defendant robbed the victim and caused injury (thereby each committing Robbery Second Degree -injury), each must also have been actually present, must have aided the other and each must, therefore, be guilty of Robbery in the Second Degree (aided). Defendants' arguments are incorrect for several reasons.
Where two or more defendants are tried jointly and a claim is advanced that the verdicts are inconsistent, the court's instructions must be analyzed to determine whether the jury was told, explicitly or otherwise, that its verdict as to one defendant must necessarily affect its verdict as to another defendant or whether its verdict as to one count must necessarily affect its verdict as to another count. See People v. Hampton, 61 NY2d 963 (1984); People v. Green, supra.
This court did not instruct the jury that any verdict as to either defendant as to any count should affect its verdict as to the other defendant on any count. Nor did this court, in instructing the jury on concepts of "another person actually present" (Robbery -aided) or "intentionally aid another person to forcibly steal property" (accessorial liability- PL 20.00), require that the jury find that the co-defendant's involvement or culpability was necessary to a finding of guilt as to either defendant on any count.[FN1] [*3]
This court's instruction of the crime of Robbery in the Second Degree (aided), PL 160.10 (1), was:
In order for you to find a particular defendant guilty of this crime, Robbery in the Second Degree as charged in Count 2, the People are required to prove, beyond a reasonable doubt, both of the following two elements:
1. That on July 6, 2003, in the County of the Bronx, that defendant intended that property be forcibly stolen from Elvis Cruz; and
2. That defendant personally forcibly stole property from Elvis Cruz and was aided by another person who was actually present or that defendant was actually present and intentionally aided another person to forcibly steal property from Elvis Cruz.
As to either defendant, the second element charged alternatively, either that the defendant personally committed the robbery while aided by another actually present or b) that he intentionally aided another to commit the robbery and was actually present. This instruction did not require that the jury's verdict on this count as to a particular defendant affect its verdict as to that defendant on any other count or affect its verdict on the other defendant as to this or any other count.
Moreover, pursuant to this court's instructions, which were proper, the simultaneous robberies of a single victim by two or more persons did not require accessorial culpability or require that any one robber be aided by another robber. Each could have independently engaged in a robbery of the same victim without the aid of another and without aiding the other.[FN2]
Accordingly, applying the court's instructions on the elements of the offenses, the jury could find both defendants not guilty of Robbery in the Second Degree (aided) and yet find both guilty of Robbery in the Second Degree (injury). Such verdicts are neither inconsistent nor repugnant.
Wherefore, defendants' motions to set aside the verdicts are denied.
This opinion constitutes the decision and order of the court.
Dated: August 2, 2004
Bronx, New York
_____________________
PETER J. BENITEZ, J.S.C.Footnotes
Footnote 1:FN3 of Florencio's brief asserts that this court instructed the jury that if a defendant "had a role" in the robbery, then accessorial liability was necessarily implicated, meaning that any role constituted aiding, and, therefore, Robbery Second Degree- aided. This court gave no such instruction. Rather, this court explained both principal and accessorial liability, giving the jury both options as to each count.
Footnote 2: At p.10 of defendant Florencio's brief counsel argues that if defendants did not steal property with the aid of another actually present each could not have been acting independently to steal the same property from the same victim at the same time. That assertion need not be considered because the jury was not instructed that they had to find that specific property was the subject of any robbery count in as much as several items of property were stolen from the victim.
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