New York Criminal Attorney Blog
The Appellate Division, Third Department’s decision in People v. Terry offers a useful roadmap of how New York courts analyze assault and robbery prosecutions built on surveillance video, shared-intent theories, and contested trial-management rulings. The panel rejected every claim raised by the defendant, who was convicted of attempted first-degree assault and two counts of second-degree robbery for a sidewalk attack outside an Albany convenience store. Understanding what swayed—and did not sway—the appellate court can help anyone facing similar charges evaluate potential defenses and appellate issues.
How the Incident Unfolded
Video showed Terry confronting the victim inside a store, shoving him, and throwing the first punch. Once outside, Terry and a woman identified as his sister repeatedly struck and kicked the victim until he collapsed on the concrete. While the victim was dazed on the ground, the sister rummaged through his pockets and removed his cell phone. Terry then returned and delivered a stomp to the victim’s head—conduct that, according to medical testimony, posed a high risk of catastrophic brain injury. The victim ultimately required staples to close a scalp wound, experienced lingering pain and bruising, and missed work.
Legal Challenges Rejected on Appeal
Terry argued that the People failed to prove he intended to cause serious physical injury, that the sister alone was responsible for the theft, and that the weight of the evidence favored acquittal. The court disagreed, emphasizing:
-
The concrete sidewalk—paired with a forceful kick—qualifies as a “dangerous instrument” under Penal Law § 120.10, making attempted first-degree assault available.
-
Terry’s conduct before, during, and after the sister rifled the victim’s pockets showed a “community of purpose,” satisfying the acting-in-concert element for second-degree robbery.
-
Even if the robbery plan arose spontaneously, Terry continued to aid the sister once her intent became obvious, sealing his liability.
No Justification, No Public-Trial Violation
County Court had refused to charge the jury on self-defense. On appeal, the judges agreed. The victim’s single push, captured on video, came only after Terry initiated close contact; it did not make the victim the initial aggressor, so Penal Law § 35.15 offered no refuge.
Terry also complained that closing the courtroom to his relatives during the store clerk’s testimony violated the Sixth Amendment. The clerk cited prior intimidation: a $20,000 melee involving Terry and later accusations of “snitching” by family members. The appellate court found those facts constituted the “unusual circumstances” that justify a narrow, witness-specific closure.
Persistent Felony Offender Issues
Terry’s constitutional attack on New York’s persistent felony offender statute was deemed unpreserved because he never raised it below. The panel declined to reach the question in the interest of justice. His 15-to-life term, they concluded, was not “unduly harsh or severe” given his criminal history and the violent facts.
Key Lessons for Defendants and Counsel
-
Intent can be inferred from the brutality of the act—kicks to the head on concrete readily show an intent to cause serious harm.
-
Acting-in-concert liability is broad; even an unplanned assist becomes criminal if you continue once a partner’s purpose is clear.
-
Preservation matters: fail to object or make your constitutional claim at trial and it may be waived on appeal.
-
Strategic jury-charge decisions rarely equal ineffective assistance, but asking for a legally impossible charge is risky.
-
Limited courtroom closures can survive scrutiny when supported by concrete safety concerns.
Facing Violent-Felony Charges? Get Experienced Help Now
This case highlights how quickly an altercation can escalate into life-altering felony exposure—and how difficult it is to overturn a conviction after trial missteps. If you or a loved one has been accused of assault, robbery, or any violent offense, the criminal defense attorneys at Tilem & Associates, P.C. are ready to protect your rights from arraignment through appeal.
Call us today at (877) 377-8666 for a free, confidential consultation. Early intervention can be the difference between freedom and a decades-long sentence—don’t wait to build the aggressive defense you deserve.