PEOPLE v. ROBINSON (1999)

 Defendant appeals from a judgment convicting him following a jury trial of robbery in the third degree (Penal Law § 160.05).   We reject defendant's contention that Supreme Court erred in failing to instruct the jury that defendant must have a “conscious objective” to use force to prevent any resistance to the retention of the stolen property (see, People v. Miller, 87 N.Y.2d 211, 217, 638 N.Y.S.2d 577, 661 N.E.2d 1358).  The court instructed the jury that the threat of physical force must be used for the purpose of “[p]reventing or overcoming resistance to * * * the retention” of the property (Penal Law § 160.00[1] ), thus adequately conveying to the jury the proper mens rea for the crime (see, People v. Smith, 79 N.Y.2d 309, 312, 582 N.Y.S.2d 946, 591 N.E.2d 1132;  People v. McKinney, 195 A.D.2d 1003, 1004, 600 N.Y.S.2d 566, lv. denied 82 N.Y.2d 757, 603 N.Y.S.2d 999, 624 N.E.2d 185;   People v. Wilkins, 191 A.D.2d 215, 595 N.Y.S.2d 673, lv. denied 81 N.Y.2d 978, 598 N.Y.S.2d 779, 615 N.E.2d 236).  Contrary to defendant's contention, the court's supplemental instruction adequately addressed the jury's question concerning the threat of force (see, People v. Brown, 81 A.D.2d 674, 675, 438 N.Y.S.2d 577).   The court properly denied defendant's motion to dismiss at the close of the People's case.   A rational jury could have found beyond a reasonable doubt that the evidence, viewed in the light most favorable to the prosecution (see, People v. Smith, supra, at 314, 582 N.Y.S.2d 946, 591 N.E.2d 1132), established that defendant threatened the grocery store employees with the immediate use of physical force in an effort to prevent the employees from recovering the stolen property (see, People v. Smith, 233 A.D.2d 124, 124-125, 649 N.Y.S.2d 418, lv. denied 89 N.Y.2d 1101, 660 N.Y.S.2d 395, 682 N.E.2d 996).

Judgment unanimously affirmed.

MEMORANDUM: