A Monroe County defendant fell short of persuading an appellate panel to reverse his conviction for attempted robbery by arguing that while he “may have been up to no good” when he showed up at a Wendy’s restaurant wearing a mask and brandishing a pistol, it’s just as likely he was there to commit a murder, rape or kidnapping.

Jafari Lamont’s unusual defense —that the prosecution failed to prove he intended to commit a robbery as opposed to another felony—almost worked, yielding a 3-2 opinion from the Appellate Division, Fourth Department.

Ironically, what partially doomed Lamont’s case is the fact that the pistol he possessed was a BB gun, and the majority found it unlikely he intended to kill someone with a BB gun. The majority also found it unlikely the defendant planned to assault someone, since there was no evidence he knew anyone in the restaurant, and equally unreasonable to infer that he planned to rape or kidnap someone in the shop.

“The only reasonable inference to be drawn is that defendant was attempting to gain entry to the restaurant so he could rob someone,” the court said in a memorandum by justices Stephen Lindley (See Profile), Rose Sconiers (See Profile) and Gerald Whalen (See Profile).

Justices Eugene Fahey (See Profile) and Erin Peradotto (See Profile) dissented.

“While it is quite unlikely that their intentions were innocent, defendant and his companion may have intended, for example, to kidnap, rape, assault, or menace an employee of the restaurant to commit some other crime or mischief therein,” the dissenters said, noting that there was no admission from the defendant that he intended to commit a robbery and nothing “to reflect a larcenous intent as opposed to general criminal intent.”

People v. Lamont, 1090, resulted from the defendant’s 2009 conviction at a nonjury trial before Monroe County Judge Patricia Marks.

The case arose from an incident at 6:30 a.m. on Nov. 1, 2008 when an employee of a Rochester Wendy’s restaurant, preparing to open the shop, heard knocking at a back door that is not used by the public. When the employee looked at a security monitor, he saw two men banging on the door, wearing masks and brandishing what appeared to be handguns, and he called the police.

When police arrived, they found two men hiding behind a stack of crates. One fled and was never found. The other, the defendant, ran toward police and was apprehended. Authorities found a BB gun near where the men were hiding, and found a pellet gun in the defendant’s vehicle.

Lamont, who is serving a seven-year state prison term for attempted second-degree robbery, rested his appeal on the claim that the prosecution had never proven that he intended to commit the charged crime. He was represented by Assistant Public Defender Janet Somes. Assistant District Attorney Erin Tubbs argued for the prosecution.

ID Procedure Slammed

In another criminal appeal decided Jan. 3, the Fourth Department overturned an assault conviction that hinged on a crime scene witness identification, saying the “procedure presses judicial tolerance beyond its limits.”

People v. Burnice, 1343, centered on a so-called “showup identification,” which occur when a suspect is caught near a crime scene and a witness is brought to the site of the arrest. The Court of Appeals has long frowned on such identifications “since they are suggestive by their very nature” (see People v. Ortiz, 90 NY2d 533 (1997)), but has never banned them entirely.

Here, records show, the showup identification of Chazerae Burnice occurred in the parking lot of a police station about 90 minutes after the crime, while he was handcuffed and in the presence of uniformed police officers. Burnice pleaded guilty to second-degree assault after Marks declined to suppress the identification.

A Fourth Department panel of Justice Nancy Smith (See Profile) and justices Fahey, Lindley, Sconiers and Whalen unanimously reversed the conviction. Since the witness who identified Burnice at the showup did not testify at the pretrial Wade hearing (United States v. Wade, 388 U.S. 218, 1967), the court said the defendant is entitled to a new hearing to determine whether the witness had an independent basis for his in-court identification.

Assistant Public Defender Jane Yoon argued for the defendant. Amanda Dreher, an assistant district attorney, appeared for the prosecution.