        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

439
KA 10-01481
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DUANE COBLE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered July 7, 2010. The judgment convicted
defendant, upon a nonjury verdict, of burglary in the second degree
and robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of burglary in the second degree under count two of the
indictment and dismissing that count, and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of burglary in the second degree (Penal Law
§ 140.25 [1] [d]) and robbery in the second degree (§ 160.10 [2] [b]).
At the conclusion of the trial, County Court found two codefendants
guilty of burglary in the second degree as a lesser included offense
of burglary in the first degree (§ 140.30 [1]) as charged in the
second count of the indictment. In rendering its verdict, however,
the court failed to dispose of that count of the indictment with
respect to defendant. Notwithstanding that failure, the court
sentenced defendant on, inter alia, a conviction of burglary in the
second degree. As the People correctly concede, the court’s failure
to dispose of the second count “constitute[d] a verdict of not guilty
with respect to [that] count” (CPL 350.10 [5]). We therefore agree
with defendant that he was acquitted of burglary in the first degree
and all lesser included offenses thereof, and we modify the judgment
accordingly.

     Defendant’s further contention that the testimony of one of the
complainants should have been precluded because she violated the order
excluding certain witnesses from observing the trial and that the
court’s failure to preclude that testimony deprived him of a fair
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                                                         KA 10-01481

trial is not preserved for our review (see CPL 470.05 [2]). In any
event, that contention is without merit. “It was in the trial court’s
discretion to grant an order excluding witnesses from observing the
trial, and the fact that a witness might have disobeyed such order
does not disqualify the witness from testifying” (People v Rivera, 182
AD2d 1092, 1092-1093, lv denied 80 NY2d 896; see also People v Palmer,
272 AD2d 891, 891). “[W]here a witness violates an order of
exclusion, he or she is subject to court-imposed sanctions[,] the
severity of which are committed to the sound discretion of the trial
court. And while the sanction may include precluding the witness from
testifying, such sanction clearly is the most drastic available and
would be appropriate only in the most egregious circumstances” (People
v Brown, 274 AD2d 609, 610). We conclude that the court did not abuse
its discretion in permitting the complainant in question to testify,
especially when she was cross-examined concerning her alleged
violation of the order of exclusion and the court was permitted to
consider that violation in assessing her credibility (see generally
Palmer, 272 AD2d at 891).

     Defendant contends that the evidence is legally insufficient to
support the conviction of robbery in the second degree because he was
charged as a principal rather than as an accessory and the evidence
failed to establish that he acted as a principal. We reject that
contention. “It is well established that liability as a principal or
an accomplice is not an element of the crime charged and that the
People may charge defendant as a principal but establish his guilt as
an accomplice” (People v Jackson, 286 AD2d 946, 946, lv denied 97 NY2d
683; see People v Rivera, 84 NY2d 766, 769-770; People v Duncan, 46
NY2d 74, 79-80, rearg denied 46 NY2d 940, cert denied 442 US 910,
rearg dismissed 56 NY2d 646). In any event, the evidence is legally
sufficient to establish that defendant committed robbery in the second
degree as a principal (see generally People v Danielson, 9 NY3d 342,
349; People v Bleakley, 69 NY2d 490, 495).

     Viewing the evidence in light of the elements of the crime of
robbery in the second degree in this nonjury trial (see Danielson, 9
NY3d at 349), we reject defendant’s further contention that the
verdict with respect to that crime is against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). “ ‘Issues of
credibility . . . , including the weight to be given the backgrounds
of the People’s witnesses and inconsistencies in their testimony, were
properly considered by the [court as the trier of fact] and there is
no basis for disturbing its determinations’ ” (People v Rogers, 70
AD3d 1340, 1340, lv denied 14 NY3d 892, cert denied 131 S Ct 475; see
generally Bleakley, 69 NY2d at 495). Further, the inconsistencies in
the witnesses’ testimony raised by defendant on appeal do not render
their testimony incredible as a matter of law (see People v Nilsen, 79
AD3d 1759, 1760, lv denied 16 NY3d 862; cf. People v Wallace, 306 AD2d
802, 802-803).

     Defendant’s contention that the court erred in considering
robbery in the second degree as a lesser included offense of robbery
in the first degree (Penal Law § 160.15 [2]) and in convicting him of
                                 -3-                          439
                                                        KA 10-01481

the lesser included offense is waived inasmuch as defendant failed to
make a timely objection with respect thereto (see People v Ford, 62
NY2d 275, 282-283; People v Smith, 13 AD3d 1121, 1122-1123, lv denied
4 NY3d 803).




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
