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

129
KA 11-00328
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY J. ALLEN, DEFENDANT-APPELLANT.


KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered December 10, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts), burglary in the second degree (two counts) and robbery in the
first degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of two counts each of murder in the second degree
(Penal Law § 125.25 [3] [felony murder]), burglary in the second
degree (§ 140.25 [1] [b], [c]), and robbery in the first degree (§
160.15 [1], [3]). The conviction arises out of an incident during
which defendant, who resided in a group home for juveniles, killed a
staff member at the group home by striking her in the head multiple
times with a table leg. Defendant then broke into the staff office of
the group home and stole money and car keys, among other items.
Defendant, his codefendant, and a third resident of the group home
fled in a van belonging to the group home before being apprehended at
a bus station.

     We reject defendant’s contention that County Court erred in
failing to suppress his statement to the police. The testimony of the
police officer who interviewed defendant following his apprehension,
which was consistent with a videotape of the interview, established
that defendant was properly advised of his Miranda rights and that he
voluntarily waived them before giving a statement to the police (see
People v Ninham, 174 AD2d 1043, 1043-1044).

     We reject defendant’s further contention that the court erred in
constructively amending the indictment to charge that defendant not
only acted in concert with a named codefendant, but also that he may
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                                                         KA 11-00328

have acted in concert with “others” (see People v Christie, 210 AD2d
497, 497; see also People v Dorfeuille, 91 AD3d 1023, 1023-1024, lv
denied 19 NY3d 996; People v Roseboro, 182 AD2d 784, 785).
Defendant’s contention that the amendment changed the theory of the
prosecution is erroneous inasmuch as “[w]hether a defendant is charged
as a principal or an accomplice to a crime has no bearing on the
theory of the prosecution” (People v Rivera, 84 NY2d 766, 769; see
People v Duncan, 46 NY2d 74, 79-80, rearg denied 46 NY2d 940, cert
denied 442 US 910, rearg dismissed 56 NY2d 646). Indeed, the
amendment merely reflected a variation in the proof that was presented
by defendant (see People v Spann, 56 NY2d 469, 473).

     We reject defendant’s further contention concerning the court’s
refusal to charge criminal trespass in the third degree (Penal Law §
140.10) and petit larceny (§ 155.25) as lesser included offenses of
burglary and robbery, respectively. Contrary to defendant’s
contention with respect to criminal trespass, there is no reasonable
view of the evidence to support the theory that defendant broke into
the staff office with the intent to retrieve his own money and no one
else’s, or that he formed an unlawful intent to commit a crime after
he entered the office (see People v Blim, 63 NY2d 718, 720; People v
Harris, 50 AD3d 1608, 1608, lv denied 10 NY3d 959; People v Mercado,
294 AD2d 805, 805, lv denied 98 NY2d 731). Contrary to defendant’s
contention with respect to petit larceny, in light of the overwhelming
evidence of a forcible taking, there is no reasonable view of the
evidence to warrant such a charge (see People v Sulli, 81 AD3d 1309,
1310, lv denied 17 NY3d 802; People v Bowman, 79 AD3d 1368, 1369-1370,
lv denied 16 NY3d 828).

     We likewise reject defendant’s contention that the court erred in
failing to instruct the jury on Penal Law § 20.10 inasmuch as there is
no evidence to support a finding that defendant’s conduct was
“necessarily incidental” to the crimes perpetrated (id.; see People v
Lee, 56 AD3d 1250, 1251-1252, lv denied 12 NY3d 818). Although we
agree with defendant’s further contention that it may have been
helpful if the court had expressly instructed the jury that “[t]he
testimony of one accomplice cannot be used to corroborate the
testimony of another” (CJI2d[NY] Accomplice as a Matter of Fact n 5),
we conclude that the charge as given adequately conveyed that
principle (see generally People v Gomez, 16 AD3d 280, 280-281, lv
denied 5 NY3d 789; People v Konigsberg, 137 AD2d 142, 146-147, lv
denied 72 NY2d 912, reconsideration denied 72 NY2d 1046; People v
Watson, 134 AD2d 871, 871, lv denied 71 NY2d 904).

     Even assuming that the other juvenile residents who were present
at the time of the incidents were accomplices, we conclude that their
testimony was adequately corroborated by, inter alia, defendant’s
admissions to the police (see People v Burgin, 40 NY2d 953, 954;
People v Dawson, 249 AD2d 977, 978, lv denied 93 NY2d 872); DNA and
blood spatter evidence connecting defendant to the victim and the
weapon (see People v Mitchell, 68 AD3d 1019, 1019, lv denied 14 NY3d
890; People v Swift, 241 AD2d 949, 949, lv denied 91 NY2d 881,
reconsideration denied 91 NY2d 1013); evidence that, prior to the
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                                                         KA 11-00328

commission of the crimes, defendant asked people in the neighborhood
for a baseball bat or a knife “to take care of somebody”; and evidence
that defendant, codefendant, and a third resident were apprehended at
a bus station and defendant had several hundred dollars on his person
(see generally People v Exum, 66 AD3d 1336, 1337).

     Contrary to defendant’s further contention, the evidence is
legally sufficient to support the conviction (see generally People v
Bleakley, 69 NY2d 490, 495) and, viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we conclude that the verdict is not against the
weight of the evidence (see generally Bleakley, 69 NY2d at 495). We
reject defendant’s contention, improperly raised for the first time in
his reply brief (see generally People v Sponburgh, 61 AD3d 1415, 1416,
lv denied 12 NY3d 929), that the testimony of the eyewitnesses was
incredible as a matter of law (see People v Watkins, 63 AD3d 1656,
1657, lv denied 13 NY3d 750; People v Ptak, 37 AD3d 1081, 1082, lv
denied 8 NY3d 949).

     The court properly denied defendant’s application for youthful
offender treatment because defendant’s conviction of a class A-I
felony rendered him ineligible for youthful offender status (see CPL
720.10 [2] [a] [i]; Penal Law § 125.25 [3]; People v Glover, 128 AD2d
636, 637, lv denied 70 NY2d 711). Finally, we conclude that the
sentence is not unduly harsh or severe in light of the depraved nature
of defendant’s conduct and his refusal to accept responsibility.




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
