People v. Rivera

Asch, J.,

dissents in a memorandum as follows: I would affirm the judgment of the Supreme Court convicting defendant of robbery in the second degree. The majority concludes that the verdict is not supported by legally sufficient evidence. *292As their writing concedes, however, we must view the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620) and take the facts, as the complainant Medici related them. Applying this principle, we find the People proved the defendant’s intent and use of force by a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (People v Bleakley, 69 NY2d 490, 495).

Medici testified that he saw defendant seated in the front passenger seat of a blue Oldsmobile with Vasquez in the rear passenger seat. This car passed him "around five times” before stopping in front of the Bahamas Chicken Restaurant about five feet from where Mr. Medici was then standing. Mr. Medici testified that when Vasquez drew the gun and demanded his coat he also punched the complainant in the jaw. Mr. Medici did not (and could not) testify that defendant intended to join in the robbery before that point. However, Medici did testify that defendant punched him in the left jaw and cheek just as Vasquez had done. Further, while defendant was at the scene, Vasquez threw Medici to the ground and took his coat and a gold plated chain. Vasquez handed the coat to defendant who ran with it to the waiting vehicle throwing the coat into the back seat. In response to the question "At what point did Mr. Vasquez give the coat to Mr. Rivera?”, Medici responded "When he took it.” Vasquez ran to the car with the chain and both he and defendant drove away. When the police stopped the car they recovered from under the back seat the loaded gun used in the robbery and in the car trunk the coat stolen from Medici.

Certainly, even this short recapitulation of Medici’s testimony clearly supports the jury’s verdict that defendant took part in the robbery. As trier of the facts, the jury was in the best position to assess the credibility of testifying witnesses since it had the advantage of observing them. This Court should not usurp this "traditional and exclusive province of the jury” (People v Parks, 41 NY2d 36, 47). The evidence presented clearly established defendant’s intent to take Medici’s property, i.e., the coat, and the use of force to accomplish this.

In a recent case where the proof was even more equivocal than in this matter, we stated: "While there was some conflict in the testimony regarding whether defendant participated in the struggle to wrest the wallet from the complainant or whether defendant was standing 20 feet away, there was *293sufficient evidence for a jury to find, beyond a reasonable doubt, that defendant was 'actually present’ within the meaning of Penal Law § 160.10 (1). Defendant was in plain view of the victim of the robbery and was in a position to aid in the forcible taking of the property and the retention of such property immediately after the taking (People v Dennis, 146 AD2d 708, affd 75 NY2d 821; People v Robinson, 127 AD2d 860). Thus, defendant was a person actually present within the meaning of Penal Law § 160.10.” (People v Moses, 162 AD2d 311, 312.)