PEOPLE v. CASTRO (2007)

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered June 1, 2007, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

The verdict was not against the weight of the evidence.   There is no basis for disturbing the jury's credibility determinations (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   The evidence established that defendant displayed what appeared to be a weapon when he gestured with his hand in his pocket and threatened to shoot the victim.

 The court properly declined to submit third-degree robbery and petit larceny as lesser included offenses of robbery in the first and second degrees, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he took the victim's property by means of some other kind of force than display of what appeared to be a firearm, or without any force (see e.g. People v. Peaks, 297 A.D.2d 578, 747 N.Y.S.2d 170 [2002], lv. denied 99 N.Y.2d 562, 754 N.Y.S.2d 215, 784 N.E.2d 88 [2002] ).

 The court properly exercised its discretion in denying defendant's mistrial motion based on portions of the People's summation.   We find that nothing in the summation deprived defendant of a fair trial (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1997], lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118-119, 591 N.Y.S.2d 1001 [1992], lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).