The People of the State of New York, Respondent, v. Edmond Valle, Appellant, 21 A.D.2d 765

Memorandum by the court. On this appeal from a judgment rendered after jury trial, convicting defendant of robbery in the first degree, defendant urges the trial court committed prejudicial error by its failure to charge robbery and assault, each in the second and third degrees respectively. The judgment appealed from should be affirmed. The law is clear “that if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense” (People v. Mussenden, 308 N. Y. 558, 561-562; see, also, Code Grim.

Pro., §§ 444, 445). “The submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one” (People v. Mussenden, supra, p. 563). The testimony of complainant Ramos and the testimony of Sherlock, the police officer, if accepted and believed by the jury, established that appellant Valle -and one Vargas, a codefendant, acting together assaulted and robbed Ramos.

There was testimony regarding the taking of money and a money clip, of Valle fleeing the scene and of being stopped for questioning while money was being held in his hand. Vargas and Valle testified neither was acquainted with the other. Vargas testified that Valle was not at the scene of the crime and that he did not see Valle. This coincided with the testimony of Valle who denied the presence at the scene or participation in the crime. The defendants’ versions were completely different from those of the witnesses for the People.

If the testimony of Vargas and Valle be accepted then the jury should have acquitted Valle. Any conviction of a lesser crime would necessarily have been founded upon speculation and have represented a compromise without any basis therefor in the evidence. The fact was that at the least a money clip had been removed from Ramos’ person by force or fear. If Valle was not at the scene as a participant, the crime at most could only have been robbery second degree, and Vargas would have been entitled to the charge of a lesser degree of crime. Vargas, however, did not request such a charge.

If Valle was at the scene, and the jury so found, and participated then only robbery in the first degree was the proper charge. It was Valle’s assistance, the other essential elements being present, which raised the robbery to the status of first degree.