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

874
KA 12-00279
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PATRICK J. ETTLEMAN, DEFENDANT-APPELLANT.


LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered January 12, 2012. The judgment convicted
defendant, upon a jury verdict, of robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of robbery in the second degree (Penal Law § 160.10 [1]),
defendant contends that he was denied a fair trial based on
prosecutorial misconduct. Specifically, defendant contends that the
prosecutor made several comments during the trial regarding accomplice
liability, whereas the indictment charged defendant only as a
principal. Because defendant did not object to any of the comments,
his contention concerning them is unpreserved for our review (see CPL
470.05 [2]). In any event, we perceive no ground for reversal based
on those comments. “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 Coble, 94 AD3d 1520, 1521, lv denied
19 NY3d 995 [internal quotation marks omitted]; see People v Sarita,
77 AD3d 555, 556, lv denied 16 NY3d 800). Moreover, “there is no
legal distinction between liability as a principal or criminal
culpability as an accomplice” (People v Rivera, 84 NY2d 766, 769; see
People v Staples, 19 AD3d 1096, 1097, lv denied 5 NY3d 810).

     Here, the prosecutor stated prior to trial that he might pursue a
theory of accomplice liability, and his comments during the trial
reflected that possibility. In response to the prosecutor’s pretrial
comment, County Court properly stated that it would wait to see how
the proof “play[ed] out” before deciding whether to instruct the jury
on accomplice liability. The court ultimately did not charge that
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                                                         KA 12-00279

theory to the jury. Instead, the court, in accordance with the
indictment, instructed the jury that, in order to find defendant
guilty of robbery in the second degree under Penal Law § 160.10 (1),
the People must prove beyond a reasonable doubt that defendant
forcibly stole property from another person while “aided by another
person actually present.” That instruction was proper, and the jury
is presumed to have followed it (see People v Bibbes, 98 AD3d 1267,
1269-1270, lv denied 20 NY3d 931).

     In any event, even assuming, arguendo, that the prosecutor
engaged in misconduct by referring to accomplice liability at trial,
we conclude that defendant was not prejudiced thereby. Indeed, the
prosecutor’s comments regarding accomplice liability “could not have
been interpreted by the jury as an instruction on the law, since the
prosecutor had previously stated that the Judge would instruct them on
the law” (People v Rosenblitt, 198 AD2d 382, 383, lv denied 82 NY2d
902; see People v Delphin, 26 AD3d 343, 343, lv denied 6 NY3d 893).

     For similar reasons, we reject defendant’s further contention
that he was deprived of effective assistance of counsel based on
defense counsel’s failure to object to the prosecutor’s allegedly
improper comments (see generally People v Santiago, 101 AD3d 1715,
1717, lv denied 21 NY3d 946). We conclude that the record, viewed as
a whole, demonstrates that defense counsel provided meaningful
representation (see People v Martinez, 73 AD3d 1432, 1433, lv denied
15 NY3d 807; see generally People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s contention, we conclude that the evidence
is legally sufficient to support the conviction and, viewing the
evidence in light of the elements of the crime as charged to the jury
(see People v Danielson, 9 NY3d 342, 349), we further conclude that
the verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). The victim testified that
defendant approached him outside a bar late at night and asked him for
directions to the nearest hotel. Defendant was with his daughter at
the time. When the victim pointed down the street, defendant punched
him in the face, knocking him to the ground, whereupon someone reached
into his pocket and took his wallet. Although the victim did not see
who took the wallet, defendant and his daughter were the only other
people in the vicinity. The bartender observed the victim on the
ground and defendant and his daughter running away. The bartender
gave chase and, upon catching defendant, asked him why he had struck
the victim, who was employed at the bar. In response, defendant
claimed that the victim had attempted to hit him. Defendant then made
a movement as if he were going to reach inside his jacket, and the
bartender reacted by grabbing him. While the two men were scuffling,
a police officer arrived and, after clarifying what had occurred,
arrested defendant.

     When questioned by the police, defendant admitted that he struck
the victim but denied taking his wallet, which was never recovered.
Although she was not arrested, defendant’s daughter was at the police
station with defendant. When it became clear to his daughter that
                                 -3-                           874
                                                         KA 12-00279

defendant was not going to be released from police custody, she
telephoned a relative and made arrangements to be picked up at the
police station. The daughter, however, did not wait at the police
station to be picked up. Instead, she left on her own and was later
observed at the scene of the crime. The daughter’s return to the
crime scene under those circumstances gives rise to a “permissible
inference[]” that could have led the jury to conclude that she may
have known where the wallet was located and that she may have put it
in that location (Bleakley, 69 NY2d at 495).

     Contrary to defendant’s contention, we conclude that the
circumstantial evidence, when viewed in the light most favorable to
the People (see People v Contes, 60 NY2d 620, 621), is legally
sufficient to establish that defendant committed the robbery while
aided by his daughter (see generally Bleakley, 69 NY2d at 495).
Because no one else was in the vicinity when the robbery occurred, it
was either defendant or his daughter who took the victim’s wallet. If
defendant did not take the wallet, as he repeatedly stated to the
police, it follows that his daughter must have taken it. That
conclusion is supported by the fact that defendant’s daughter was seen
running from the fallen victim with defendant and then returned to the
crime scene later that night even though she had made arrangements to
be picked up at the police station by a relative. We further conclude
that, although a different verdict would not have been unreasonable,
it cannot be said that the jury failed to give the evidence the weight
it should be accorded (see People v Sterina, 108 AD3d 1088, 1090;
People v Mobley, 49 AD3d 1343, 1345, lv denied 11 NY3d 791; see
generally Bleakley, 69 NY2d at 495).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
