People State New York v. Frank Sanders

[38 A.D.2d 877 Page 877] Memorandum: On December 20, 1969 Chester Liskiewicz was stabbed and died a few days later in a Buffalo hospital. Defendant,
Frank Sanders, and two co-defendants were charged with common-law murder, felony murder and attempted robbery in the first
and second degrees. Following a jury trial, one co-defendant (Reese) was found guilty of murder and attempted robbery in the
first degree, the other co-defendant (Spell) was acquitted, and defendant Sanders was found guilty of assault in the second
degree (under the felony-murder count) and attempted robbery in the second degree. para. The convictions against defendant
Sanders may not stand since there was not sufficient evidence to support the verdict of attempted robbery. Witness Giles'
testimony that defendant Reese said "Let's mug him" (referring to the victim) was charged by the trial court to be considered
only as against defendant Reese but not against defendants Sanders and Spell "and you are to draw no inference whatsoever
from that statement as to the intentions of the other two defendants." There was no proof that Sanders heard Reese's statement,
nor that Sanders asked for, received or attempted in any way to take money from the victim. There must be evidence of intent
(Penal Law, 110:00; People v. Weis, 32 A.D.2d 856), not found in this record, without which the conviction for attempted
robbery in the second degree must be reversed. para. For the same reason the defendant Sanders' conviction for assault in
the second degree under the felony-murder count must also be reversed. The trial court properly charged the jury that the
felony assault sections of the Penal Law require proof that the defendant intends to cause either physical injury (Penal Law,
120.05) or serious physical injury (Penal Law, 120.10) in the commission or attempted commission of a felony. Absent the
intent to commit a robbery, there is not the requisite intent needed to support a conviction for assault second. para. Further,
the indictment against Sanders must be dismissed, since jeopardy attached with respect to the lesser included offenses under
the first count of the indictment (common-law murder), which was dismissed against defendant Sanders at the close of the entire
case (CPL 40.20; N. Y. Const., art. I, 6; Benton v. Maryland, 395 U.S. 784). para. All concur, except Witner, J., who dissents
and votes to affirm the judgment, and Moule, J., who dissents and votes to affirm the judgment in the following memorandum:
I dissent and vote to affirm. On the evening of December 20, 1969, defendant Frank Sanders and two co-defendants were roaming
the City of Buffalo streets with four or five other youths. At around 6:30 or 7 o'clock, one of the group snatched a purse
from a woman on Herman Street. They remained together and around 8:30 or 9 o'clock, another purse was snatched on Stanton
Street near Broadway. From there, they proceeded to a tavern where one of the group secured change for a five [38 A.D.2d
877 Page 878]