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

532
KA 10-00699
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY C. LAMAR, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered February 1, 2010. 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 reversed on the facts, the indictment is dismissed and the
matter is remitted to Orleans County Court for proceedings pursuant to
CPL 470.45.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the second degree (Penal Law §
160.10 [1]). Contrary to defendant’s contention, we conclude that the
conviction is supported by legally sufficient evidence (see generally
People v Hines, 97 NY2d 56, 62, rearg denied 97 NY2d 678; People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), however, we agree with defendant that the verdict is
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). Where, as here, a different finding from that reached by the
jury would not have been unreasonable, we must “ ‘weigh the relative
probative force of conflicting testimony and the relative strength of
conflicting inferences that may be drawn from the testimony’ ” (id.),
and then we must “decide[] whether the jury was justified in finding
the defendant guilty beyond a reasonable doubt” (Danielson, 9 NY3d at
348).

     The indictment alleged that defendant and the codefendant, “each
being aided by the other,” acted in concert to forcibly steal property
from the victim. County Court instructed the jury that the People
were required to prove that defendant forcibly stole property from the
victim and that he was aided in doing so by another person actually
present. The court’s charge thus cast defendant as the principal and
                                 -2-                           532
                                                         KA 10-00699

the codefendant as the person who aided in the robbery. The court
refused to instruct the jury on accessorial liability, thereby taking
“the question of accessorial liability . . . out of the case” (People
v Dlugash, 41 NY2d 725, 731).

     The evidence, however, failed to establish that defendant acted
as the principal in the robbery. Rather, the evidence supported two
equally strong inferences that defendant acted as the principal or
that the codefendant acted as such. Despite the absence of evidence
making either inference stronger than the other, the jury assigned
more weight to the inference that defendant acted as the principal.
Consequently, we conclude that the jury “failed to give the evidence
the weight it should be accorded” (Bleakley, 69 NY2d at 495).

     In view of our determination, we need not address defendant’s
remaining contentions.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
