People v. Carr-El

McGinity, J.,

concurs in part and dissents in part and votes to modify the judgment by vacating the conviction of robbery in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and otherwise affirming the judgment, with the following memorandum: On February 8, 1997, at approximately 4:30 a.m., the defendant, along with the codefendant Danny Postigo, boarded the “N” train at the Ditmars Boulevard and 31st Street subway station in Queens County. The codefendant approached a sleeping passenger, the complainant, and sliced open the complainant’s pants’ pocket and removed a beeper, as the defendant stood at the doors of the subway car. The defendant and codefendant then proceeded to the next subway car and approached a second sleeping passenger. As the codefendant cut the pocket of the second passenger, the complainant awoke to discover his beeper missing. The complainant saw the defendant and codefendant removing the second passenger’s property and then proceeded towards that subway car. The complainant heard the defendant say “there he comes” and confronted the codefendant, demanding the return of his beeper. The codefendant denied taking it and threatened to hit the complainant.

While the defendant was properly convicted of the crimes of grand larceny in the fourth degree, criminal possession óf a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, I agree with the defendant’s contention that the prosecutor failed to establish that he intended to commit the crime of robbery in the second degree.

In order to hold an alleged accessory liable for the crime committed by the principal actor, the People must establish, beyond a reasonable doubt, that the alleged accessory possessed the mental capability necessary to commit the crime charged, i.e., in this case robbery in the second degree, and that in furtherance thereof, he solicited, requested, commanded, importuned, or substantially aided the principal (see, People v White, 178 AD2d 452, 453; cf., Penal Law § 20.00; People v La Belle, 18 NY2d 405). The evidence, when considered in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620) establishes, at best, that the defendant intended to commit the crime of grand larceny. The record is devoid of evidence that the defendant intended to use or threatened to use force against the complainant or was present when his codefendant spoke. Without adequate proof of a shared intent with the principal actor, there is no community of purpose, and, therefore, no basis for finding that the defendant acted in concert with the actuaL perpetrator (see, People v White, supra; People v Taylor, 141 AD2d 581).

Accordingly, the defendant’s conviction of the crime of robbery in the second degree should be vacated, the sentence imposed thereon should be vacated, and that count of the indictment should be dismissed.