In November 2008, a Wendy’s employee in Rochester, New York, was preparing food for the day when he heard knocking on the back door. Through the security camera, the employee observed two masked men banging on the door and holding what appeared to be handguns. After the employee called 911, a police officer was dispatched to the restaurant. When Defendant and his accomplice spotted the officer, Defendant ran toward him with his gun pointed at the officer while his accomplice ran in the opposite direction. Defendant was wearing a black mask over his face, back knit hat, and black gloves. He wore a backpack with clothes in it. The police later found a BB gun in the grass behind the restaurant, a car registered to Defendant in a nearby parking lot, and a pellet gun inside the vehicle.
The indictment charged Defendant with two counts of attempted robbery in the second degree and two counts of attempted burglary in the second degree. Defendant was later acquitted of the attempted burglary counts in county court. Defendant conceded that he and his accomplice “may have been up to no good,” but he argued that the State failed to prove beyond a reasonable doubt that either intended to commit robbery and that the evidence was legally insufficient. 977 N.Y.S.2d at 541.
The court rejected Defendant’s argument. Direct evidence is rarely available and is unnecessary where there is a legally sufficient circumstantial evidence of intent, which may be inferred from the defendant’s conduct and the surrounding circumstances. The evidence established that none of the Wendy’s employees knew Defendant; the restaurant was not open to the public when he and his accomplice sought entry; and Defendant and his accomplice were armed with BB guns that appeared to be firearms, wore masks and gloves, and had a backpack in which Defendant could carry stolen items. The court therefore concluded that there was a valid line of reasoning and permissible inferences that could lead a rational person to conclude that the two intended to rob the restaurant.
Lastly, the court also rejected Defendant’s contention that he was deprived of effective assistance of counsel because his trial attorney failed to object to the verdict as repugnant. The court stated that where there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case. Therefore, the court affirmed Defendant’s charge of two counts of attempted robbery in the second degree.
In their dissent, Justices Fahey and Peradotto found the evidence legally insufficient to support Defendant’s conviction for attempted robbery. For the justices, the evidence was insufficient to show that Defendant intended to forcibly steal property rather than engage in any number of other misdeeds. The dissent conceded the unlikelihood that Defendant’s intentions were innocent, but ventured that he may have instead intended to “rape, assault, or menace” an employee. 977 N.Y.S.2d at 544.
977 N.Y.S.2d 540 (4th Dep’t 2014)